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Home My WebLink AboutAlfalfa Area Cell Tower Appeal.. Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM DATE: March 19, 2013 TO: Board of County Commissioners FROM: Paul Blikstad, Senior Planner RE: Board consideration of an appeal submitted by American Tower of a Hearings Officer's decision denying a cell tower in the Alfalfa area (File No, CU-12-15) BACKGROUND: American Tower submitted an application for a Conditional Use Permit for a 100-foot tall cell tower in the Alfalfa area of the county. The property where the tower is proposed is located at 25070 Alfalfa Market Road (Assessor's map 17-14-29, tax lot 600), This application went before the Deschutes County Hearings Officer at a public hearing on December 4, 2012, The Hearings Officer's decision denied the application and it was mailed out on March 1, 2013. An appeal was submitted within the 12-day appeal period by American Tower. As of the end of March, the review period will be at the 143rd day, The applicant/appellant has indicated that they are willing to grant an extension to the 150-day review period in order for the Board to consider the appeal. The applicant has requested de novo review of the application, APPEAL: The notice of appeal describes three assignments of error, which are listed below, 1, The Hearings Officer erroneously found the Applicant-Appellant failed to satisfy its burden of proof under DCC 18.128.340(B)(2) in failing to prove that other sites within the search area are either 1) unavailable, 2) do not provide the communications coverage necessary, and lor 3) have a substantially similar or greater visual impact as viewed from nearby residences as the Subject Property. 2. The Hearings Officer erroneously found that the Hearing Officer could not find the Applicant-Appellant satisfied its burden of proof under 18,128.340(A)(3)(c) because the evidence in the record establishes proposed search ring satisfies the applicable criteria. 3. Alternatively, the Hearings Officer erroneously found that the evidence in this decision did not support a finding that the proposed facility must be sited on exclusive farm use zoned property under DCC 18.16.038(A)(3) because the evidence in the record establishes urban and nonresource lands were unavailable due to the visual impacts of the proposed facility on the nearby residences. Quality Services Performed with Pride As noted above, the applicant is willing to extend the time frame for review of this appeal for up to 60-75 days to allow time for the Board to hear the appeal. The appellant requests de novo review. The Board should review the notice of appeal to determine that it is sufficiently specific so that the Board is able to respond to and resolve each issue in dispute (See: DCC 22.32.020(A». If the Board decides to hear the appeal, the review shall be on the record unless the Board decides to hear the appeal de novo because it finds the sUbstantial rights of the parties would be significantly prejudiced without de novo review and it does not appear that the request is necessitated by failure of the appellant to present evidence that was available at the time of the previous review; or whether in its sole judgment a de novo hearing is necessary to fully and properly evaluate a significant policy issue relevant to the proposed land use action (See: DCC 22.32.027(B)(2)(c) and (d». The Board may, at its discretion, determine that it will limit the issues on appeal to those listed in the notice of appeal or to one or more specific issues from among those listed on the notice of appeal (See: DCC 22.32.027(B)(4». DECLINING REVIEW If the Board decides that the Hearings Officer's decision shall be the final decision of the County, then the Board shall not hear the appeal and the party appealing may continue the appeal as provided by law. The decision on the land use application becomes final upon the mailing of the Board's decision to decline review. In determining whether to hear the appeal, the Board may consider only: 1. The record before the Hearings Officer; 2. The notice of appeal; and 3. Recommendations of staff (See: DCC 22.32.035(B) and (D». STAFF RECOMMENDATION Staff recommends that the Board hear the appeal of the Hearings Officer's decision, because there are significant policy issues and code interpretations involved. Staff recommends that the Board conduct a de novo review. Attached for your review is a copy of the decision on CU-12-15, as well as the notice of appeal. All of the file/submitted materials and comments are available for review, either in LAVA or if requested, I can get you paper copies. The applicant's attorney submitted a supplemental notice of appeal after the 12-day appeal period, which we have determined you cannot review unless you choose to hear it de novo. I have scheduled this for the Board's work session on Monday April 1 st for discussion and a possible decision on whether to hear the appeal. If you should have any questions, feel free to contact me at your convenience. BOCC Memo (CU-12-15) Page 2 BY. RE~YED MAR 1 3 2013 DELlVEREQjlY:ufYMarch 12, 2013 Via UPS Next Day Air lZ F71 97022 1005 501 0 Paul Blikstad, Senior Planner Deschutes County Community Development Community Development Building 117 NW lafayette Ave. Bend, OR 97701 RE: Appeal of Deschutes County Hearings Officer Decision for CU-12-1S Our File No: 22756 Dear Paul: Enclosed please find the application form to appeal Deschutes County Hearings Officer Decision for CU 12-15. Also enclosed is a check in the amount of $3,333.00. The information required by the Notice to Appeal will follow via email to you on Wednesday, March 13. Please feel free to contact me if you have any questions. Sincer mshipman@sglaw,com Voice Message #310 MOS:jsm Enclosures H:\OO<:s\22S00-22999\227S6\Correspond<t_\l.etter.&libutdA_al.Docx Park Place, Suite 300 250 Church Street SE Salem, Oregon 97301 Post Office Box 470 Salem, Oregon 97308 tel 503.399.1070 fax 503.371.2927 A MElmbcr of LEG US. an Internlltional Network of Utw Firms. www.sglaw.com I , ~ Community Development DeQartment . Planning Division 117 NW Lafayette Avenue, Bend, DR 97701-1925 (541 ) 388-6575 • Fax (541) 385-1764 http://www.deschutes.org/cdd APPEAL APPLICA TION FEE: ____ I i EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the 80ard of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this fonn must include the items listed above. Failure to complete all of the above may render an appeal Invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise· a potential appellant as to whether the appellant Is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. American Tower Corporation and AT&T Mobility Appellant's Name (print): clo Mark D. Shipman Phone: lQQ3J 399-1070 Mailing Address: Saalfeld Griggs PC; PO Box 470 City/State/Zip: Salem. OR 97308 Land Use Application Being Appealed: Conditional Use Permit CU-12-1S 14 Section 29 Tax Lot_6:..;0:...;0"---__________ EXCEPT AS PR IDED I SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF NY HEA NG APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UP REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON-THE-RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITIEN RECORDS. (over) Appellant's Signature: --;~::.....:~~~:.L.---_--------------------- i NOTICE OF APPEAL I / Justification for appeal forthcoming under separate cover. I March 13, 2013 Via Email to prlul.bllkstod@desmutes.org Deschutes-County Board of Commissioners clo Paul Blikstad Deschutes County Planning Department 117 NW Lafayette Avenue Bend, OR 97701 RE: Conditional Use Case No. CU-12-15 Our File No: 22756 Dear Honorable Commissioners: This office represents New Cingular Wireless PCS, LLC by and through American Tower Corporation (herein collectively "Appllcant"). Applicant is the tenant of a portion of 25070 Alfalfa Market Road, Bend, OR 97701 (County Assessor's Map No. 171429 00 00600) (hereinafter the "SubJect Property"). On October 8, 2012, Applicant submitted its application proposing to install a new wireless communication facility conSisting of a 100-foot free-standing steel monopole with accompanying antennas, microwave dish, electric and phone utilities, a 12' by 20' prefab equipment shelter inside a 50' by 60' fenced leased area, and landscaping, including eleven (11) juniper trees (herein the H Applicotion"). On March I, 2013, the Deschutes County Hearings Officer's decision in Conditional Use Case No. CU-12-1S (the "Decision") denied the Application. The Decision was mailed on March 1, 2013. Applicant-Appellant submits this letter requesting the Board of Commissioners (herein the "Boord') to accept an appeal of the Decision on de novo review for the reasons stated below. Statement of Assignments of Error 1. The Hearings Officer erroneously found the Applicant-Appellant failed to satisfy Its burden of proof under DCC 18.128.34O{B)(2) in failing to prove that other sites within the search area are either 1) unavailable, 2) do not provide the communications coverage necessary, and/or 3) have a substantially similar or greater visual impact as viewed from nearby residences as the Subject Property. Park Place, Suite 300 250 Church Street SE Salem. Ore9on 97301 POSI Office Box 470 Salem, Olegor'> 97308 tel 503.399.1 070 fax 503.371.2927 www.sglaw.~om March 13, 2013 Deschutes County Board of Commissioners Page 2 The Hearings Officer made the following finding in the Decision in relevant part: First, the applicant's burden of proof does not appear to consider the alternative of utilizing the existing transmission lines along Elk Lane, and the applicant does not respond to this suggestion in post hearing submissions. Second, the applicant does not respond to the opponents' suggestion that the tower might be located on the DSL property in a way that only Incrementally impacts views from nearby residences which are already impacted by those transmission lines. Third, the applicant's dismissal of the DSL property does not adequately respond to the opponents' reasons for suggesting that property as an alternative. The record shows that the DSL property Is fairly large and varied in terrain compared to nearby lands. The argument submitted by the applicant does not demonstrate a serious attempt to find a location on the DSL property that both satisfies the RF needs and mitigates impacts on scenic views. Instead, the applicant posits a spectrum of potential locations populated only by a location at the bottom of the ridge and a location at the top of the ridge. Predictably, those locations are deemed unsatisfactory due to limitations in coverage or impacts on scenic views. Opponents ident1/1ed locations both on the west side and the eost side of the property that might represent lesser visual Impocts to surrounding residence, but the applicant does not seriously respond to those suggestions. The record provides sufficient substantial evidence to suggest that many other alternative locations within the DSL property could satisfy the primary component of DCC 18.128.340(8}(2} which is to show that Nany less intrusive sites are either unavailable or do not provide the communications coverage necessary.II For these reasons I find that the application does not comply with this criterion. . The Hearings Officer's Decision faults the Applicant-Appellant for failing to consider siting the property on transmission lines along Elk lane, which is outside of the search ring. Applicant's written statement and subsequent materials establish what properties are subject for consideration as defined by the search ring. The Hearings Officer's assertion the Applicant-Appellant's application must be denied for falling to respond to assertions that the proposed facility can be sited on properties outside of the search ring is a misinterpretation of DCC 18.128.340(B)(2) and is not supported by the evidence in the record. Similarly, the Hearings Officer's Decision dismisses the Applicant-Appellant's analysis of the DSl Property as an inadequate response. Applicant's written materials in the record and the oral testimony of Rod Michaelis explained that the coverage goals of AT&T could only be addressed if the proposed facility was sited on the top of the ridge, which would negate the apparent advantage of the site as it relates to mitigating visual impacts. Unfortunately, Mr. Michaelis testimony was not preserved on the record, which further substantiates the need for de novo review of the Decision. If the Board grants review, the Applicant-Appellant can submit additional evidence specifically analyzing these proposed sites, including express evidence as to whether it is feasible to create a tower in such alternative sites to satisfy the coverage goals and if so, the physical characteristics of such towers. However, Applicant-Appellant asserts the evidence in the record is sufficient to address this criterion. March 13, 2013 Deschutes County Board of Commissioners Page 3 2. The Hearings OffIcer erroneously found that the Hearings Officer could not find the Applicant-Appellant satisfied its burden of proof under 18.128.340(A)(3)(c) because the evidence In the record establishes proposed search ring satisfies the applicable criteria. The Hearings Officer made the following finding in the Decision: The staff report addresses this criterion os follows: The proposal includes maps labeled "Location Overview" and "Alfalfa -Search Ring, " attached as part of exhibit 9 to the application. There is also a larger scale map of the area printed out in the County's LAVA mapping system, as well as a Google Earth map. The "Location Overview" map shows existing tower locations in relation to the proposed site on Alfalfa Market Road. Exhibit 9 also Includes a letterfrom Karen SuI/ivan, RF Engineer for AT & T, for a rodio frequency analysis. The analysis states: 'We have researched other sites In the area for an existing structure to collocate AT & T's wireless and microwave antennas and we found no towers or structures suitable for colocation that will meet the coverage objective for the area. A FCC ASR web search was conducted and the nearest existing tower is located at 44-04-15.7N, 121-09-51.7\.\1, which is apprOXimately 4.5 miles from the proposed Alfalfa site. 4.5 miles is too far out of the search ring to produce any positive effect In filling the gap in RF coverage. The new structure that we intend to locate on will be co-locatable to accommodate multiple wireless carriers' antennas.'" The search ring submitted by the applicant includes a relatively small area near and including the subject property. Staff believes that the applicant needs to state why this particular area served as the extent of the search ring, and why other areas beyond this area were not considered. Opponents argued that the search ring is too small to realistically capture all the potentially available properties for an adequate alternatives analysis. Consistent with the findings for DCC 18.124.340(8)(2) below I conclude that the search ring could have been expanded. However, because I find that the application fails to satisfy DeC 18.124.340(8)(2), it wo_uld be premature to necessarily conclude that the search ring initially proposed by the applicant was in error. The record contains written evidence by Applicant's representative, Karen Sullivan, RF Engineer, including a search ring and report into the record establishing the outer limits of the properties that will anow for the installation of the lowest possible tower height while still providing the best overall coverage for the Alfalfa Community. The necessary coverage goals in this case were to cover the greater Alfalfa area, including those areas between Highway 20 and Powell Butte, and between Alfalfa and East Bend. Moreover, Applicant-Appellant's representative provided expert testimony before the Hearings Officer regarding the search ring. Unfortunately, the record of such testimony, as described below, is incomplete. Regardless, It was erroneous of the Hearings Officer to flnd that the search ring did not satisfy the criterion. I March 13, 2013 1 Deschutes County Board of CommissionersI Page 4 I Moreover, Applicant-Appellant asserts the Hearings Officer's interpretation of the Applicant's burden of proof to refute alternative sites, especially those located outside of the search ring is inconsistent with federal case law interpreting the Telecommunications Act, which is applicable to this decision. Specifically, Applicant-Appellant asserts it has established a prima facie showing that siting the Proposed Facility on the Subject Property is necessary to satisfy the Appllcant-Appellant's coverage goals while complying with the purpose of the applicable criteria as much as is reasonably feasible. T-Mooile USA, Inc. v. City 0/Anacortes, S72 F.3d 987, 998 (CA9 (Wash.)(2009) (reversing local denial when applicant provided analysis of 18 possible alternative sites and demonstrated no other available sites). If review is granted, Applicant-Appellant will offer additional testimony explaining the methodology used by AT&T in calculating the search ring and establish such methodology comports with the applicable criterion. Applicant-Appellant's engineers and other representatives will also make themselves available for further questions by the Board. 3. Alternatively, the Hearings OffIcer erroneously found that the evidence in this decision did not support a finding that the proposed facility must be sited on exclusive farm use zoned property under DeC 18.16.038(A)(3) because the evidence in the record establishes urban and non resource lands were unavailable due to the visual impacts of the proposed facility on the nearby residences. The Hearings Officer correctly interpreted OCC 18.16.038(A)(3) in finding that a denial of this application due to immitigable visual impacts on non-resource lands within the search ring would necessarily justify locating the proposed facility on non-resource land. However, the Hearings Officer erred in determining the evidence in the record did not prove that the search ring in the record satisfied the code requlreme~ts and that the DSL property could not be developed in a !11anner that would decrease the visual impact on the surrounding properties. In the alternative to First and Second Assignments of Error, Applicant-Appellant requests the Board affirm the Decision In part and reverse in part accordingly. Reasons Why the Board Should Grant De Novo Review The Applicant-Appellant respectfully requests the Board to grant review the Decision to correct the Assignments of Error identified above. Further, Applicant-Appellant requests the Board to grant a de novo review of the Decision. OCC 22.23.02 provides the following factors for determining whether the Board should grant an appellant's request for a de novo review: a. Whether hearing the application de novo could cause the lSD-day time limit to be exceeded; and b. If the magnetic tape of the hearing below, or a portion thereof, is unavailable due to a malfunctioning of the recording device during that heoring, whether review on the record would be hampered by the absence of a transcript of all or a portIon 0/the hearing below; or c. Whether the substantial rights ofthe parties would be significantly prejudiced without de novo review and it does not appear that the request is necessitated by failure of the appellant to present evidence that was available at the time of the previous review; or d. Whether in its sale judgment a de novo hearing is necessary to fully and properly evaluate a significant policy issue relevant to the proposed land use action. I I March 13,2013 Deschutes County Board of Commissioners PageS I The factors In this case support the Board granting de novo review of the Decision. Applicant-Appellant is willing to grant an extension of 60-15 days to allow the Board sufficient time for a de novo hearing. As the requested hearing will be the second evidentiary hearing, the parties will not have a statutory right to require the record be kept open. Therefore, Applicant-Appellant is willing to adequately extend l5O-day deadline in order for the Board to have adequate time to hear and consider this application; and this factor supports the Board's granting of a de novo hearing. 1 The tape recording of the decision does not provide a complete record of the oral testimony by the Applicant-Appellant and its representatives. SpecifICally, the recording of the testimony of Applicant's case In chief and objections by the oppOSing parties is of such poor quality that it Is practically missing in its entirety and the Applicant's rebuttal testimony missing substantial portions thereof. If the Board were to deny review of the Decision, the lack of a complete record before the Hearings Officer would substantially prejudice the Applicant-Appellant ability to seek otherwise available judicial review of the Decision. Specifically, without the ability to create a complete transcript, Applicant-Appellant could not establish as a matter of law the evidence in the record satisfies the criterion as Applicant-Appellant relied on its oral testimony to meet this burden. The interest of justice and this factor strongly support the Board's granting of a de novo hearing. No substantial rights of the opponents are affected by the granting of a de novo hearing. The Applicant Appellant is requesting the hearing and would suffer prejudice to a substantial right. Again, this factor supports granting de novo review. Additionally, a de novo hearing is necessary for the Board to consider expert testimony regarding the Issues In contention. While Applicant-Appellant's representatives testified before the Hearings Officer, the nature of such testimony is of the kind that Applicant-Ap'pellant expects the Board will want to hear the testimony directly, weight the quality thereof, and follow up with any questions the Board may have. j The Decision includes several interpretations of law as identified in the Assignments of Error above. The Board is the final arbiter of the DCC. This case involves significant questions of local law: how large must an applicant's search right be, how much of a visual impact on nearby residences requires denial of a proposed tower, and whether such a denial justifies development of exclusive farm use zoned i properties. The Board Is the appropriate body to make such determinations of law and policy, and therefore, this factor favors granting a de novo review. I ~ Lastly, the Applicant-Appellant Intends on submitting the signed application of New Cingular Wireless t PCS, LLC (AT&T) and a copy of its FCC license to the Board in the event it accepts review of the Decision. The Hearings Officer found such a license could be provided as a condition of approval. In the interest of creating a record adequate for review and limit the number of Issues in contention, Applicant Appellant shall provide such the necessary signatures and FCC license prior to the scheduled hearing. j Conclusion 1 A de novo hearing is necessary in order to correct the Hearings Officer's decision in this case. Applicant~ Appellant is willing to grant the additional time needed by the Board to fully conduct a new hearing, j consider the testimony and evidence in reaching a decision that has important policy considerations fori I 1 March 13, 2013 Deschutes County Boai'd of Commissioners Page 6 Deschutes County, its residents, and the telecommunication providers. Applicant-Appellant respec;Uullv submits this letter In support of their request. MOS:jsm H:\Do<o\2:zsoo.~75~.....\l.ott.'.Oos<""".C!y. BOC.Appo.,Jl"", DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER I I r FILE NUMBER: CU-12-15 I OWNER/APPliCANT: American Tower clo Rod Michaelis 1411 E. Pinecrest Road Spokane, VVA 99203 REQUEST: Conditional Use Permit for a wireless telecommunications facility, consisting of a 100-foot cellular monopole and associated ground equipment, in the Rural Residential zone. STAFF CONTACT: Paul Blilcstad, Senior Planner HEARING DATE: November 20,2012 and December 4,2012 RECORD CLOSED: January 11,2013 I. STANDARDS AND APPLICABLE CRITERIA: Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance Chapter 18.60, Rural Residential Zone (RR-IO) 18.60.030, Conditional Uses Permitted 18.60.040, Yard and Setback Requirements 18.60.060, Dimensional Standards 18.60.070, Limitations on Conditional Uses Chapter 18.116, Supplementary Provisions 18.116.250, VVireless Telecommunications Facilities Chapter 18.128, Conditional Use 18.128.015, General standards governing conditional uses 18.128.340, VVireless Telecommunications Facilities n. FINDINGS OF FACT: A. . LOCATION: The subject property has an assigned address of 25070 Alfalfa Market Road, Bend, and is identified on County Assessor's Map 17-14-29, as tax lot 600. B. ZONING: The subject property is zoned Rural Residential (RR-I0), and is designated rural residential exception area by the Deschutes County Comprehensive Plan. C. LOT OF RECORD: The subject property is a legal lot of record pursuant to being lot 33 Bend Cascade View Estates Unit 2. D. SITE DESCRIPTION: The subject property is approximately 5 acres and slopes gently up at the front of the property from south to north. There is an existing dwe1ling, accessed from a driveway extending north from Alfalfa Market Road. The site contains a very sparse cover ofjuniper trees. CU-12-1S -American Tower 1 There are also loafing sheds for horses, as well as an existing fenced area for horses in the front half of the property. E. SURROUNDING LAND USES: Surrounding properties are predominantly zoned rural residential and are developed with rural residences and small-scale farms. F. PROPOSAL: The applicant is proposing to install a new wireless communication facility consisting of a 100-foot free-standing steel monopole with antennas, microwave dish, electric and phone utilities, and a 12' by 20' prefab equipment shelter inside a 50' by 60' fenced leased area. G. PUBLIC AGENCY COMMENTS: The Planning Division sent notice of the land use application to several public agencies and received the following responses: County Transportation Planner: I have reviewed the transmittal materials for a proposed cell tower in the RR-IO zone at 25070 Alfalfa Market Road, Bend, aka 17-14-29, tax lot 600. The cell tower will not generate 50 new weekday trips, therefore no traffic study is required based on the thresholds set by Deschutes County Code 17.l6.l15(C)(4). Similarly, as the site will not consume any road capacity as outlined in BOCC Resolution 2008-05.9, no transportation system development charge is required. Finally, the tower will not intrude into any of the imaginary surfaces described in the Airport Safety (AS) Combining Zone at DCC 18.80. County Building Safety Division: The Deschutes County Building Safety Division's code required access, egress, setbacks, fire and life safety, fire fighting water supplies, etc. will be specifically addressed during the plan review process for any proposed structures and occupancies. All building code required items will be addressed when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. County Road Department, Pacific Power and Light, Avion Water Company: No comment responses. No responses were received from: Bend Cable Communications, County Assessor, Cascade Natural Gas, Central Electric Cooperative, Century link. H. PUBLIC COMMENTS: The Planning Division sent notice ofthe proposed land use application and public hearing to all property owners within 1,000 feet of the subject property. A few responses to the notice were received prior to the date the staff report was issued. The letters expressed concern over the visual impacts of the proposed facility, effect on the property values, lighting of the cell tower, and were opposed to the proposal. Those letters were made part ofthe record. I. PROCEDURAL HISTORY: The conditional use application was submitted on October 8, 2012. The application was accepted and deemed complete on November 7, 2012. The initial public hearing was scheduled for November 20, 2012. Prior to that date, the applicant requested that the hearing be continued. The Hearings Officer opened the hearing on November 20, 2012, and explained that there was a continuance request, and that anyone desiring to testify that evening could do so, or could wait until the next hearing. No person sought to testify at the hearing. Thereafter, the hearing was continued to December 4, 2012 at 6:30 p.m. CU-12-15 -American Tower 2 Prior to the December 4, 2012 hearing, opponents of the application submitted numerous letters urging denial ofthe application primarily due to negative impacts on scenic views and the perceiVed incompatibility of the proposed tower with the surrounding rural residential uses. The continued public hearing was held on December 4, 2012. All exhibits and records of testimony are filed with the Planning Division. At the beginning of the hearing, the Hearings Officer made the declarations required by ORS 197.763. The Hearings Officer disclaimed any ex parte contacts, bias or conflicts of interest. The Hearings Officer stated that the only relevant criteria were those identified in the staf'freport, that participants should direct their comments to those criteria, and failure to raise all arguments may result in waiver ofarguments at subsequent appeal forums. Relevant testimony given at the hearing is discussed below. During the hearing, the applicant and opponents requested that the written record remain open. The Hearings Officer set the following schedule: I) participants could submit argument and evidence on any issue prior to December 21, 2012, 2) responsive argument and evidence would be accepted until January 4,2013, and 3) the applicant's final argument was due January 11,2013. Again, prior to the January 4, 2013 deadline, numerous letters were submitted by opponents ofthe application. The applicant also submitted a response letter dated January 4,2103. One argument raised by attorney Bruce White warrants mention here. In his January 4, 2013, letter he argues that the applicant has proposed an alternative location for the proposed tower on the subject property and that the proposal constitutes a modification of the application under DCC 22.04.020 and DCC 22.20.055. The applicant responded that the alternate location could be blessed by the Hearings Officer through a condition of approval. Based on the findings and conclusions discussed below, it is not necessary to determine whether the alternate location constitutes a modification of the application. The applicant submitted a final argument on January 11,2013. On the same day, Mr. White submitted a letter objecting to the applicant's suggestion that a detailed landscape plan could be allowed as a post-hearing submittal through a condition of approval. He argued that such a landscape plan should have been subjected to public scrutiny through the hearing process, and that the record did not contain substantial evidence that such a condition would be feasible. Again, based on the findings and conclusions discussed below, it is not necessary address this argument. The record closed on January 11,2013. m. CONCLUSIONS OF LAW: A. Chapter 18.60, Rural Residential (RR-I0) Zone 1. Section 18.60.030, Conditional Uses Permitted. The folJowing uses may be allowed subject to DeC 18.128: U. Wireless telecommunications facilities, except those facilities meeting the requirements ofDCC 18.116.250(A) or (B). FINDING: Deschutes County Code 18.04.030 defines wireless telecommunications facility as: "an unstaffed facility for the transmission or reception of radio frequency (RF) signals usually consisting of an equipment shelter, cabinet or other enclosed structure containing electronic equipment, a support structure such as a self-supporting monopole or lattice tower, antennas, microwave dishes or other transmission and CU-12-15 -American Tower 3 reception devices. This defmition includes "personal wireless services facilities" as defmed under the Telecommunications Act of 1996. The applicant is proposing a wireless telecommunications facility for cellular phone service, as defined above. The proposal is for a 100-foot high free..standing steel monopole, with antennas, microwave dish. electric and phone utilities and a prefab equipment shelter. Cellular communica-tions facilities are allowed in the RR-l 0 zone. The proposed facility is considered a Tier 3 facility. 2. Section 18.60.040, Dimensional Standards In an RR-I0 Zone, the following yard and setbacks shall be maintained. A. The front setback shall be a minimum of20 feet from a property line fronting on a local street right of way, 30 feet from a property line fronting on a collector right of way, and 50 feet from an arterial right of way. FINDING: Alfalfa Market Road is a designated arterial street. The minimum setback is 50 feet as listed above. The proposed setback for the monopole and ground equipment closest to the road is shown to be at least 60 feet, meeting the 50-foot setback. B. There sball be a minimum side yard of 10 feet for all uses, except on the street side of a corner lot the side yard sball be 20 feet. FINDING: The proposed side setbacks are shown to be approximately 30 feet from the west property line, and 100 feet from the east property line, meeting the 10-foot minimum. C. The minimum rear yard sball be 20 feet. FINDING: The submittal indicates that the rear setback will he approximately at least 900 feet from the north property line, meeting the standard. D. The setback from the north lot line shan meet the solar setback requirements in DCC 18.116.180. FINDING: Staff found. and the Hearings Officer agrees, that a wireless telecommunications monopole is not subject to the solar standards under DCC 18.116.180, which is listed as "Building Setbacks for the Protection of Solar Access. Solar Access is defined under DCC 18.04.030 as: "protection from shade for a specific area during specific hours and dates, but not including protection from shade cast by exempt vegetation." Shade is defined as: "a shadow, except a shadow caused by a narrow object, including, but not limited to, a utility pole, an antenna, a wire or a flagpole." A wireless telecommunications monopole can reasonably be considered a "narrow object" that would be exempt from solar access requirements. This view is consistent with the hearings officer's decision in CU-l1-14. That decision discussed the difference between a "monopine" and a "monopole," and detennined that a monopine does not constitute a narrow object, but a monopole does. E. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by tbe State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: Staff concluded, and the Hearings Officer agrees, that no greater setbacks would be required by applicable building or structural codes adopted by the State ofOregon or the County. CU-12-IS -American Tower 4 3. Section 18.60.060, Dimensional Standards In an RR-I0 Zone, the following dimensional standards shall apply: A. Lot Coverage. The main building and accessory buildings located on any building site or lot shall not cover is excess of 30 percent of the total lot area. FINDING: Staff found, and the Hearings Officer agrees, that the proposed monopole is not a building, which is defined under DCC IS.04.030 as "a structure built for support, shelter or enclosure of persons, animals, chattels or property of any kind." The monopole would not be used for support, shelter or enclosure ofpersons, animals, chattels or property. The existing dwelling, according to the County Assessor's records is 1,704 square feet in size. The existing loafmg shed is approximately 400 square feet in size. The proposed equipment shed is 240 square feet in size. The total area taken up by buildings would be 2,344 square feet. The subject property is approximately 5 acres in size (217,SOO square feet). The total lot coverage would be approximately 1 percent, wen below the 30 percent standard. B. 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. FINDING: Prior hearings officer decisions have determined that the height limit under DCC IS.l2S.340(AXI) supersedes the 30-foot height limit above. See file nos. CU-OS-S6, CU-09-14, CU-09-53, CU-II-14 incorporated into the record. C. Minimum lot size shall be 10 acres, except planned and cluster developments shall be allowed an equivalent density of one unit per 7.5 acres. Planned and cluster developments within one mile of an acknowledged urban growth boundary shall be allowed a five-acre minimum lot size or equivalent density. For parcels separated by new arterial rights of way, an exemption shall be granted pursuant to DCC 18.120.020. FINDING: The minimum lot size in this instance is not appHcable to the proposed use, since the subject property is a legal lot of record and platted as part of the Bend Cascade View Estates subdivision. 4. Section 18.60.070, Limitations on Conditional Uses The following limitations shall apply to uses allowed by DCC 18.60.030: A. The Planning Director or Hearings Body may require establishment and maintenance of fire breaks, the use of fire resistant materials in construction and landscaping, or may attach other similar conditions or limitations that will serve to reduce fire hazards or prevent the spread of fire to surrounding areas. B. The Planning Director or Hearings Body may limit changes in the natural grade of land, or the alteration, removal or destruction of natural vegetation in order to prevent or minimize erosion or pollution. FINDING: Stafffound, and the Hearings Officer agrees, that the proposed wireless telecommunications facility will not create a need for fire breaks, and will also not create a fire hazard. The materials used for the facility would all be fire resistant, preventing the spread ofwildfire based on its construction. B. Chapter 18.116, Supplementary Provisions CU-12-1S -American Tower S 1. 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 ofDCC 18.116.250 shall be submitted to the County in writing and accompanied by a site plan and proposed schematics of the facility. Hthe 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 shaD 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 ofDCC 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. FINDING: There is no dispute as to whether the proposed facility is a Tier 3 facility. The applicant applied for a conditional use permit for the Tier 3 standard. C. Chapter 18.128, Conditional Use 1. 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; FINDING: The staff report states that the subject property is relatively flat and has a sparse coverage of juniper trees which are generally 20 feet or less in height. Staff did not find the typography or the soils on the subject property would prohibit the use. Staff found that the design and operating characteristics are typical of cellular telecommunications facilities and would be suitable for the site. Opponents of the application argue strenuously that this provision should be read to include a consideration of whether the subject property contains sufficient vegetative cover to provide screening for the facility. If trees and topography are insufficient to hide the proposed tower from view, they argue, then the site should be considered unsuitable due to its visual impact on surrounding properties. Prior hearings officer's decisions have treated this provision as requiring an analysis of whether the site itself is capable of accommodating a tower, associated equipment cabinets, and required fencing and landscaping CU-08-79, CU-11-14, CU-09-36. I concur with that prior analysis. If the provision was intended to encompass a suitability factor as viewed from surrounding properties there should be language indicating that intent. Such language is absent, and stretching the definition of "suitable" to imply such a requirement would violate ORS ]74.010. CU-12-15 -American Tower 6 2. Adequacy oftransportation access to the site; and FINDING: Access for the site is directly from Alfalfa Market Road, which is a paved county maintained rural arterial. The County Road Department had no comments on the proposed use, and the County Transportation Planner indicated that the use will not consume any road capacity. The proposed tower and equipment cabinets would be in unmanned facility needing only periodic maintenance visits. Stafffound, and I agree, that access to the site will be adequate for the proposed use. 3. The natural and physical features of the site, including but not limited to, general topography, natural hazards and natural resource values. FINDING: Staff made the following fmdings under this criterion: The natural and physical features of the site include primarily the existing trees, as well as open space, and the natural topography. The level topography ofthe front portion of the subject property appears to be adequate for the installation of a telecommunications facility. The site plan indicates the construction of the telecommunications facility will require the removal of one existing tree. There are no identified or observable natural hazards associated with the property, based on two staff site visits to the property. The applicant is proposing to retain the natural resource values of the vegetation, and open space of the site. The proposed facility will impact less than one-quarter acre of the 5-acre property. Again opponents argue that this provision should be read to consider whether the proposed site possesses characteristics which would enable a tower to be screened from view of nearby residences. For the same reasons discussed in DCC 18.128.0 15(A)(l), the Hearings Officer concludes that this provision applies to the subject property itself and does not contemplate suitability as viewed from surrounding properties. Here, the "natural and physical features of the site" indicate that the subject property can accommodate a tower and associated equipment cabinets. This criterion is met. B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in (A) above. C. These standards and any other standards ofDCC 18.128 may be met by the imposition of conditions calculated to insure that he standard will be met. FINDING: Staff made the following findings with respect to this criterion: Staff believes that the proposed facility would have a substantial visual impact on the adjacent privately owned land, especially the closest properties to the west, north and south of the subject property. The surrounding area has only a sparse cover ofjuniper trees, and the proposed monopole would be approximately five (5) times the height of the tallest existing trees in the area, which staff estimates to be approximately 20 feet. Staff believes that the proposed facility would not inhibit the ability of property owners to build dwellings or any accessory structures. The nearby property owners have expressed concern over the visual impacts of the monopole. Staff believes that the telecommunications facility would not be compatible with the existing development, based on the "site" criterion above. The proposed monopole will stand out significantly from the surrounding vegetation and development, and staff believes it would be the focal point of any person driving by or living in the area. CU-12-15 -American Tower 7 Opponents of the application vigorously agreed with Staff's conclusions arguing that the lack of available vegetation to screen the tower from view makes the proposed use incompatible with existing and projected uses on surrounding lands. Prior hearings officer's decisions have construed this provision to require that the existing and projected "uses" on surrounding lands will be allowed to continue if the proposed telecommunications facility were approved-CU-11-14, CU-08-79. I agree with that analysis. This criterion is concerned with pennitted and conditional uses allowed under the development code, not with surrounding property owners' enjoyment of their land. I explained this distinction in CU-09-36 as follows: I understand the neighbors' concerns about the appearance of the tower in their neighborhood. However, the existence of the tower will not so much affect the use, but the enjoyment oftheir properties. This criterion is concerned mainly with making the proposed use compatible with other uses. There is no evidence in the record that the proposed monopole will impact the ability of current neighbors to use their properties for all the residential and associated uses that they now enjoy. This finding applies equally to the current application. The surrounding lands are primarily rural residential lands consisting of homes, outbuildings and perhaps some small hobby farm type uses. There is nothing inherent about the presence of a cell tower which would prevent those rural residential uses from continuing. Staff is correct that "the proposed facility would not inhibit the ability of property owners to build dwellings or any accessory structures" -and that conclusion is sufficient to show compliance with this criterion. The fact that the tower may be aesthetically displeasing to surrounding residents is outside the scope of consideration of this provision. 2. 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 Dee 18.128.045 through 18.128.370. FINDING: The proposed cellular telecommunications facUity is subject to the standards listed below. 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 Dee 18.124 including site plan review for a use that would otherwise require site plan review under Dee 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: 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 CU-12-15 -American Tower 8 I I I I I b. Two thousand feet for a tower or monopole at least 100 feet and no I higher than 150 feet in height. Such notice shall not take the place of notice required by DCC Title 22. I I FINDING: The application includes a copy of a notice for a public meeting dated March 7, 2012 for a neighborhood meeting that was held on Wednesday, March 21, 2012. There is a certificate of mailing indicating it was mailed on March 7,2012. According to this information the notice was mailed at least 10 days ahead of the March 21 51 meeting. The applicant indicates that the distance that was used for the mailing to all property owners was 2,000 feet. The mailing list sent out for the notice of meeting includes 36 different property owners. l 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 I deemed complete until the applicant has had a pre-application conference with Planning Division staff. I FINDING: The proposal meets this criterion because the applicant submitted a statement that indicates the applicant attended a pre-application meeting with staff on March 22, 2012. The staff report verifies that this ! pre-application meeting occurred. j 3. Submittal Requirements. An application for a conditional use permit for a wireless telecommunications facility shall include: j a. A copy of the blank lease form. 1 FINDING: The proposal meets this criterion because it includes a copy of a blank lease form (lease ~ agreement), attached as exhibit 8 to the submittal.I b. A copy of the applicant's Federal Communications Commission I I license. FINDING: Stafffound that "in this instance is American Tower, which does not have the FCC license. Staff believes that there needs to be a condition added that the proposed tower cannot be approved without a formal (and final) written agreement between American Tower and New Cingular Wireless PCS, LLC, and a copy of that agreement submitted to the Planning Division prior to issuance of any building permit for the proposed tower. Without that formal connection, and the applicant not having the FCC license, this application would have to be denied." The opponents amplified this conclusion and argued strenuously that the application was not complete because a copy FCC license was not included in the application. The applicant responds that this provision could be adequately addressed by a condition of approval requiring submission of the FCC license. Because the Hearings Officer has determined that this application should be denied on other grounds, compliance with this criterion is not determinative in this case. However, the record shows a sufficient factual connection 1 between the applicant and New Cingular Wireless to support a condition as the applicant has suggested. 11 c. A map that shows the applicant's search ring for the proposed site I I and the properties within the search ring, including locations of existing telecommunications towers or monopoles. CU-12-1S -American Tower 9 I i FINDING: The staff report addresses this criterion as follows: The proposal includes maps labeled "Location Overview" and "Alfalfa -Search Ring," attached as part of exhibit 9 to the application. There is also a larger scale map ofthe area printed out in the County's LAVA mapping system, as well as a Google Earth map. The "Location Overview" map shows existing tower locations in relation to the proposed site on Alfalfa Market Road. Exhibit 9 also includes a letter from Karen Sullivan, RF Engineer for AT &T, for a radio frequency analysis. The analysis states: "We have researched other sites in the area for an existing structure to collocate AT & T's wireless and microwave antennas and we found no towers or structures suitable for co location that will meet the coverage objective for the area. A FCC ASR web search was conducted and the nearest existing tower is located at 44-04-1S.7N, 121-09-S1.7W, which is approximately 4.5 miles from the proposed Alfalfa site. 4.5 miles is too far out of the search ring to produce any positive effect in filling the gap in RF coverage. The new structure that we intend to locate on will be co-locatable to accommodate multiple wireless carriers' antennas." The search ring submitted by the applicant includes a relatively small area near and including the subject property. Staff believes that the applicant needs to state why this particular area served as the extent of the search ring, and why other areas beyond this area were not considered. Opponents argued that the search ring is too small to realistically capture all the potentially available properties for an adequate alternatives analysis. Consistent with the findings for DCC 18.124.340(B)(2) below I conclude that the search ring could have been expanded. However, because I find that the application fails to satisfY DCC 18.124.340(BX2), it would be premature to necessarily conclude that the search ring initially proposed by the applicant was in error. 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 Dee 18.128.340(A)(1). FINDING: As indicated above, the application includes a copy of the March 7, 2012 notice ofthe March 21,2012 neighborhood meeting. The application also includes a list of the owners of record of property falling within the notice area, of which there were 36 different owners mailed notice. And it includes a copy of County Assessor's map 17-14-29, which shows the 2000-foot notice area hand drawn on the map. The applicant also provided a certificate of mailing docu-menting that notice of the meeting was sent to these property owners. This criterion is met. 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. FINDING: The application includes a sign-in sheet that indicates several persons showed up for the neighborhood meeting. The applicant submitted a written summary of the neighborhood meeting comments, which took place at the High Desert Community Grange located at 62855 Powell Butte Highway at 7:00 p.m. on March 21,20]2. This criterion is met. 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. CU-12-1S -American Tower 10 FINDING: The application includes a site plan that shows the lease area on site, including the ground equipment and monopole, the utility connections, as well as the surrounding cyclone fence and gate. The site plan shows trees being planted on three sides (west, north and east) of the fenced area. The site plan indicates introduced juniper trees. g. A copy of the design specifications, including proposed colors, and/or elevation of an antenna array proposed with the facUity. FINDING: The application includes drawings of the proposed monopole and antennas, and the proposed ground equipment area. The applicant's burden of proof statement indicates on page 9 that the proposed pole color would be "Environmental Green by Sherwin Williams or other color selected by Deschutes County as appropriate." The burden of proof also states that the pole and antennas will be painted in the same non-reflective color. h. An elevation drawing ofthe facility and a photographic simulation of the facility showing how it would fit into the landscape. FINDING: The application includes an elevation drawing of the proposed monopole (drawing A-4). The applicant has submitted a photographic simulation of the monopole showing how it would fit into the landscape, as depicted in exhibit 6. The photographic simulations are taken from four locations, as depicted on the aerial photo attached to each ofthe four pages. 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 faciJity. FINDING: The applicant has submitted letters from both the Federal Aviation Administration dated November 2,2011, and Oregon Department of Aviation l dated February 21, 2012, indicating that the proposed monopole would not be a hazard to air navigation, and lighting is not necessary for construction and operation. 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. FINDING: Stafffound, and the Hearings Officer agrees, that the proposal meets this criterion because it shows the facility will not be located on irrigated land. Section 18.04.030 of the County Code defines the term irrigated as ''watered by an artificial or controlled means, such as sprinklers, furrows, ditches or spreader dikes." This definition goes on to state, "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." Staff observed during a site visit that the subject property was not being watered by any of the artificial or controlled means identified in the above-referenced definition. This criterion is met. 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 I The State of Oregon has changed the name of the agency to the Oregon Department of Aviation. CU-12-1S -American Tower 11 proposed and bas determined that any less intrusive sites are eitber nnavailable or do not provide tbe communications coverage necessary. To meet tbis criterion, tbe applicant must demonstrate tbat it bas made a good faitb effort to co-locate its antennas on existing monopoles in tbe area to be served. The applicant can demonstrate tbis by submittin2 a statement from a qualified en2ineer tbat indicates wbether the necessary service can or cannot be provided by co location within the area to be served. FINDING: Based on the infonnation available prior to the initial public hearing, Staff made the following fmdings in response to this criterion: The application includes exhibit 9, a letter from Karen Sullivan, RF Engineer, which states: "We have researched other sites in the area for an existing structure to collocate AT & T's wireless and microwave antennas and we found no towers or structures suitable for co-location that will meet the coverage objective for the area. A FCC ASR web search was conducted and the nearest existing tower is located at 44-04-1 S.7N, 121-09-S1.7W, which is approximately 4.5 miles from the proposed Alfalfa site. 4.5 miles is too far out of the search ring to produce any positive effect in filling the gap in RF coverage. The new structure we intend to locate on will be co-locatable to accommodate mUltiple wireless carriers' antennas." The burden of proof also lists a total of 18 sites that were considered for the proposed facility, five of which are zoned EFU. The applicant is correct in that placing a telecom-munications facility in the Exclusive Farm Use zone has a much higher burden. And with the adjacent RR-I 0 zone, it is unlikely that a facility could be approved in the EFU zone. Staff believes that the applicant has considered other sites in the search area, and has determined that they would not have less visual impact from nearby residences. Several appear to be unavailable based on the owners not being interested in siting a telecommunications facility on their land. As stated above, staff believes that the EFU zoned properties have a much higher burden for locating a facility, and with the adjacent RR-I 0 land, it is unlikely a facility could be approved in the EFU zone. Opponents of the application submitted a significant amount of testimony and evidence critical of the applicant's alternative sites analysis. A November 12, 2012 letter from Mr. White argues that additional alternative sites exist, for example locations along Elk Lane and transmission lines along that road, and a property owned by the Oregon Division of State Lands. Opponents claim that the search area chosen by the applicant is insufficient both in size and for the reason that it does not identifY enough nearby EFU zoned lands which could reasonably meet the applicant service needs. As to the DSL parcel, Mr. White provides specific arguments asserting that the property would be more protective of scenic views than the subject property. He argues that alternative locations both on the eastern or western edge ofthe property represent advantages for preserving scenic views superior to the subject property. He also argues that the transmission lines along Elk Lane, which is near the DSL property already impact scenic views and that the proposed tower could be located such that the additional impact ofthe cel I tower would be reduced if located in that area. In his December 21, 2012 letter, Mr. White also argues that the applicant should have considered locating the needed wireless antennas on one ofthe existing transmission line towers along Elk Lane -in essence extending the height of one of those towers. He gives an example of where this technique is been used elsewhere in the County. The applicant makes a limited response to the opponents' arguments regarding alternative sites, and acknowledges that the DSL property is both available for lease, and would satisfY the applicant's service CU-12-1S -American Tower 12 needs. Applicant's attorney Mark Shipman's argues in his January 4, 2013 letter that the opponents insist that any tower on the DSL property be located at the base of the ridge that runs through it He argues that such a location would not fulfill the applicant's service needs, and that a tower at the top ofthe ridge would likely impact the views of more of the surrounding residents than would the subject property. The essence ofthe applicant's argument is that the combination ofthe coverage requirements and ability to mitigate impacts on the views makes the DSL property a third tier location compared to the location applied for on the subject property and the alternative location to the north end of the subject property. Prior hearings officers decisions have interpreted DCC 18.128.340(BX2) to require both a search for co location opportunities and a search for alternative sites that "would have less visual impact as viewed from nearby residences than the site proposed." Former hearings officer Gerald Watson, in CU-11-14, concluded that this criterion requires an applicant to consider alternatives suggested by opponents based on the holdings in T-Mobile USA v. City ofAnacortes, 572 F.3 n1 987 (9th Cir. 2009) Van Nalts v. Benton County, 42 Or LUBA 497, 499 (2002). I agree with that analysis. For the reasons set forth below, the hearings officer agrees with the opponents. First, the applicant's burden of proof does not appear to consider the alternative of utilizing the existing transmission lines along Elk Lane, and the applicant does not respond to this suggestion in post hearing submissions. Second, the applicant does not respond to the opponents' suggestion that the tower might be located on the DSL property in a way that only incrementally impacts views from nearby residences which are already impacted by those transmission lines. Third, the applicant's dismissal of the DSL property does not adequately respond to the opponents' reasons for suggesting that property as an alternative. The record shows that the DSL property is fairly large and varied in terrain compared to nearby lands. The argument submitted by the applicant does not demonstrate a serious attempt to find a location on the DSL property that both satisfies the RF needs and mitigates impacts on scenic views. Instead, the applicant posits a spectrum of potential locations populated only by a location at the bottom ofthe ridge and a location at the top of the ridge. Predictably, those locations are deemed unsatisfactory due to limitations in coverage or impacts on scenic views. Opponents identified locations both on the west side and the east side of the property that might represent lesser visual impacts to surrounding residence, but the applicant does not seriously respond to those suggestions. The record provides sufficient substantial evidence to suggest that many other alternative locations within the DSL property could satisfy the primary component of DCC 18. 1 28.340(B)(2) which is to show that "any less intrusive sites are either unavailable or do not provide the communications coverage necessary." For these reasons I find that the application does not comply with this criterion. One other issue merits discussion under this criterion. Opponents argued that the search ring of alternative sites should have included more properties zoned EFU. The applicant did consider a few EFU zoned parcels. However, both staff and the applicant concluded that the substantially higher burden of proof required to locate a telecommunications facility on EFU land made a larger analysis of those lands unreasonable in light of the fact that other non-resource lands were president within the search ring. I can find no error in an applicant's desire to avoid what would ordinarily be a futile alternatives analysis of nearby EFU lands. However, in circumstances such as this one where the record shows that negative visual impacts of a proposed tower, including the impacts to scenic views protected under DCC l8.128.340(BX5), are largely unavoidable and likely to be experienced by a significant number of nearby residents, a larger search ring including EFU lands should be considered. The reason the Hearings Officer offers these observations is in connection with the applicant's request, made in Mr. Shipman's December 21, 2012 letter, that if the application must be denied due to unacceptable visual impacts that: CU-12-15 -American Tower 13 Alternatively. the applicant requests a hearings officer to specifically find that the requirements ofORS 215.275(2)(c) and DCC lS.16.03S(A)(3) are satisfied. Specifically. that no available property within the search ring and within the RR-l 0 zone has less visual impact on surrounding residences than the proposed site. Therefore as a matter of law, the hearings officer establishes by negative implication that the urban and non-resource lands are unavailable under ORS 2l5.275(2)(c) and DCC IS.16.03S(A)(3). The statute, and DCC IS.16.038(A)(3) impose a threshold test for allowing a utility facility to be located on EFU land. That test is as follows: A. A utility facility necessary for public use allowed under DCC IS.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 ofthe following factors: 3. Lack of available urban and nonresource lands; The applicant is asking the Hearings Officer to reach two conclusions with regard to this request. First, that demonstrated negative visual impacts on surrounding properties can render urban and non-resource lands "unavailable" for a proposed telecommunications facility under DCC IS.l6.03S(A)(3). Second, that the current application has demonstrated that surrounding RR-l 0 zoned land is unavailable for the proposed tower due to visual impacts. In this instance, I can reach the first conclusion but not the second. Neither the state statute nor DCC 18. 16.03S(A)(3) articulate the scope ofthe term "available." Webster's Third New International Dictionary defines "available" as: "3: such as may be availed: capable of use for the accomplishment of a purpose, immediately utilizable." It is possible to imagine many legitimate reasons why urban or rural residential lands might be unavailable for a proposed telecom-munications facility. At minimum, "available" does not simply refer to lands which are available "for purchase or lease" because the statute omits those additional words. In view of the multiple references in DCC IS.12S.340 directed at protecting scenic views and screening a proposed facility from the view of nearby residents, it is reasonable to construe ORS 215.275(2)(c) and DCC IS.l6.03S(A)(3) to be met when negative visual impacts on surrounding non resource lands cannot be avoided or reasonably mitigated. However, consistent with the findings above, I cannot fmd that the applicant has established that the DSL property and potential locations along Elk Lane are not "available" because they represent negative visual impacts, including impacts on scenic views under DCC IS.l24.340(B)(5). If the applicant were to adequately respond under DCC IS.124.340(B)(2) and determine that those locations actually have similar negative impacts as compared to the proposed tower location, it would be appropriate to conclude that those locations, in addition to the other alternative sites identified in the burden of proof, are not "available" for the purposes ofDCC IS.l6.038{A)(3). 3. The facility is sited using trees, vegetation, and topography to the maximum extent practicable to screen the facility from view of nearby residences. FINDING: Staff made the following findings in response to this criterion: CU-12-1S -American Tower 14 StaffbeIieves that the proposed monopole will be visible from many of the nearby residences in Bend Cascade View Estates. The area has a very sparse cover ofjuniper trees at varying heights, none of which appear to exceed 20 feet. Staff believes that the proposed monopole will cannot be screened based on the location in an area with scattered trees no more than 20 feet tall. The question arises as to what would constitute the maximum extent practical. Staff believes that, based on previous hearings officer's decisions (CU-08-86, CU-09-14, CU-09-53, CU-11-14), this would refer to screening on and around the subject property. With the subject property and other surrounding properties having little vegetation, there does not appear to be another location on the property where the telecommunications facility would have more screening. It appears that the facility will be screened to the maximum extent practicable on the subject property. The Hearings Officer has reviewed those prior hearings officer's decisions and agrees with Staff. I sympathize with the opponents' argument that this provision is functionally meaningless in a fact situation such as the current application. However, the words "maximum extent practicable" do not mean that all visual impacts must be eliminated even considering that the record clearly establishes that existing trees, vegetation and topography will essentially fail to screen the tower from view of nearby residences. 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. FINDING: The subject property is not within the LM zone. This criterion does not apply. 5. In all cases, the applicant shall site the facility in a manner to minimize its impact on scenic views and shall site the facility using trees, vegetation, and topography in order to screen it to the maximum extent practicable from view from protected roadways. Towers or monopoles shall not be sited in locations where there is no vegetative, structural or topographic screening available. FINDING: In response to this criterion the Staff found: The above language requires that towers or monopoles shall not be sited in locations where_there is no vegetative, structural or topographic screening available. Staff believes that this area does not have much in the way of vegetative or structural screening available, and has only a few areas where there may be topographic screening available. Staff believes that under the last sentence of "5" above, this criterion was directed at sites like the one proposed, which essentially have no vegetative, structural or topographic screening available. Staffbelieves that this criterion has not been met. Opponents submitted abundant argument and photographs of the area which support Staffs interpretation of this section. Their argument is that the juniper trees in the area are both sparse in number and short in stature, providing no meaningful ability to screen a 100' tower. In his December 21,2012 letter Mr. White makes a number ofarguments. First, the provision is meant to apply "in all cases." Second, the provision is concerned with protecting "scenic views." Third, the provision does not apply solely to "protected roadways." Fourth, that the second sentence ofthe provision sets out a hard constraint related to satisfYing the performance standards set out in the first sentence. Finally, that the term "locations" in the second sentence of the provision is related to potential vegetative screening at the actual location ofthe proposed tower. 1 \ CU-12-15 -American Tower 15j i I The applicant argued throughout the proceeding that no location on any property in the immediate vicinity would completely eliminate visual impacts. This line of argument is best summed up by the applicant's final comment on the matter: The opponents would lead you to believe that this criterion should be treated as an absolute bar, such that if any portion of the tower was visible from any property, road, or trail, that the proposed tower facility be denied because there is going to be a scenic view of something -Paulina, Horse Ridge, the Cascades, Mount Adams, territory in surrounding area[ s] beyond the tower facility. However, nothing in DCC 18.128.340B requires that all scenic views of any nature be protected rather the code speaks in terms of minimizing the impact on scenic views. Such language contemplates that scenic views can be impacted but that the applicant must use their best efforts to minimize such impacts. In an attempt to better understand the meaning of DCC 18.128.340(B)(5) the Hearings Officer reviewed several prior hearings officer decisions. To my knowledge, this provision has never been the central focus of a telecommunications facility decision. To that extent, the hearings officers' decisions, including several of my own, have been somewhat inconsistent in the application of this section. In prior applications that I have considered, CU-09-14, CU-09-182 and CU-09-36, substantial evidence in the record showed that sufficient screening in the form ofeither structures, or tall trees such as Ponderosa Pine or Aspen, had the potential to reasonably screen the proposed tower. The factual basis in former hearings officer Gerald Watson's decision in CU-11-14 also showed sufficient tall tree cover to provide meaningful screening, although he denied the application on slightly different grounds. Similarly, former hearings officer Anne Corcoran Briggs, in CU-OS-79, was able to conclude that DCC IS.124.340(B)(5) was met because the tower would be substantially screened by a 60 foot tall water tank and nearby trees. Hearings Officer Karen Green approved a similarly sized tower in CU-09-53 where no meaningful screening was available for the tower. However, the tower was proposed for a commercial zone in the middle of Terrebonne and she also found: The Hearings Officer finds it is significant that in spite of the county having sent notice of the applicant's proposal to property owners within 1,000 feet ofthe boundaries of the subject property and in spite of the applicant having sent notice of the neighborhood meeting (which no one attended) to property owners within 1,320 feet of the property --only one person commented on the applicant's proposal. And that person's comments did not express concern about the appearance of the tower but rather about where it would land if it collapsed. In the absence of public opposition to the proposed facility on the basis of its appearance and visual impacts, I find it reasonable to conclude the Terrebonne community does not believe the proposed tower will be incompatible at its proposed location. These findings were also essentially incorporated by reference into her the findings for DCC 18.1 24.340(B)(S). This research shows that, at least in recent years, the question presented by this application has not been directly addressed in prior hearings officer's decisions. Nor has the Land Use Board of Appeals or the Oregon Court of Appeals previously reviewed this provision. 2 In this decision, I determined that Dee 18.128.340(B)(5) applied only to "protected roadways." On closer review, I have determined that conclusion to be incorrect. Such a reading would render the phrases "in all cases" and "scenic views", as well as the entire second sentence ofthe provision meaningless. That result would violate both ORS 174.010 and 174.020. CU-12-15 -American Tower 16 With all the above resources exhausted, the meaning of DeC IS.12S.340(B)(5) must fall back on the familiar methodology described in PGE v. BOll, 317 Or 606, 611 (1993). That case tells us to fIrst examine the text and context ofthe provision in question. As an initial matter, I agree with Mr. White that DCC IS.124.34O(B)(5) is directed at "scenic views" and that all applications ("in all cases") are obligated to "minimize impacts" on scenic views. This is a different requirement than that imposed by DCC IS.124.340(B)(3) which is concerned with screening the proposed facility from nearby residences. The PGE methodology requires that a word or phrase be used as defIned in the County code if there is such a defmition. Although DeC IS.04.030 defInes the term "scenic area" it does not defme "scenic views." In absence of a deftnition in the code, the plain meaning of a word or phrase should be applied. Webster's Third New International Dictionary defmes the adjective "scenic" as: ''2a: of or relating to natural scenery beauties." The noun scenery from which the word "scenic" is derived is defIned as: "2a: a view of picturesque spots and expanses esp. in open country: the general aspect of a landscape: the array of impressive natural prospects and imposing features of a particular place [preferred -to historical landmarks ] [mountain]: 3: a picturesque view or landscape ... * *" From these defInitions, the Hearings Officer concludes that DCC IS.12S.340(B)(5) is only triggered where "scenic" views are present and will be interfered with by the presence ofa telecommunications facility. DCC IS.12S.340(B)(5) may not always be applicable because such views are not present, as in CU-09-36, or where the residents and other citizens that might be affected do not deem the views to be scenic, as was apparently the case in CU-09-14 and CU-09-53. However, that is not the case here. The record contains abundant testimony and evidence documenting the scenic views experienced by many nearby residents. Those views include, the open desert plateau, the Cascade Mountains, Horse Ridge, Pine Mountain and the Paulina Mountains.3 Based on the above defInitions, the Hearings Officer concludes that a reasonable person, and most particularly the people who have chosen to reside in the area, would conclude that those views are "scenic" for the purposes ofDCC lS.12S.340(B)(5). Once such scenic views have been identifIed, DeC lS.128.340(B)(5) requires that any proposed facility be sited "in a manner to minimize its impact on scenic views." The applicant argues that this provision contemplates that scenic views may be impacted by telephone communications facility. According to this reading, the obligation ofthe applicant would simply be to do the best job of protecting scenic views given the existing topography, terrain, and screening trees. Opponents argue that this provision is modifIed or conditioned by the second sentence in DCC 18.128.340(B)(5). The Hearings Officer concludes that the opponents' interpretation is correct. DeC IS. 128.340(B)(5) is inartfully written and not entirely clear. However, two rules of construction require that the second sentence be enforced as written. The fIrst rule is set forth in ORS 174.0 I 0 which states ''where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to alL" The problem with the applicant's interpretation is that it reads the second sentence ofDCC 18.128.340(B)(5) out ofthe provision completely, rendering it meaningless. The second applicable rule is set forth in ORS 174.020(2) which states, "[w]hen a general and particular provision are inconsistent, the latter is paramount to the former so that a particular intent controls a general intent that is inconsistent with the particular intent." The fIrst sentence ofDCC 18.1 28.340(B)(5) appears to set a more relaxed standard than the second sentence. The second sentence uses the prohibition "shall not" which represents a much stricter standard than simply "minimize." Applying ORS 174.020(2), the second sentence ofDCC lS.l2S.340(B)(5) 3 A typical example of the written testimony is a December 4, 2012 e-mail from Katya Spieker. The record contains abundant written and oral testimony from individuals whose views from their front room, deck, or yards contain similar scenery. I I 17CU-12-15 -American Tower represents a particular intent to disallow the siting of telecommunication towers where there is no vegetation, structures or terrain to meaningfully screen the facility. For these reasons, I agree with Mr. White's position that the second sentence ofDCC I 8. I 28.340(BX5) modifies the first sentence and places a constraint on the question ofwhether it is possible to site a tower in a way that minimizes impacts on scenic views. The remaining question is whether there is substantial evidence in the record showing that "no vegetative, structural or topographic screening" is available at the proposed site. Prior hearings officers' decisions have interpreted these words to require some meaningful or effective screening to be available on the site -CU 09-53. The Hearings Officer agrees. Specifically, I do not interpret this provision to be triggered only where a proposed site is completely devoid of vegetation, structures or topographic features. The word "screening" is the focus of the sentence, and to be meaningful the vegetation, structures or topography must actually be effective at screening a proposed tower. Here, the record shows that the rural residential area in which the subject property is located contains a very sparse cover of short juniper trees. Both written and oral testimony estimated that the maximum height of the juniper trees is approximately 20 feet. The photographs in the record, including the applicant's attempts to simulate the visual impact of the tower, show that neither the existing vegetation, structures, nor topography will meaningfully screen the proposed tower. Although there is much discussion both by the opponents and the applicant of an alternative location on the subject property which might be marginally better than the primary location proposed for the tower, that location does not contain sufficient vegetation or topography to effectively screen the tower. Based on this substantial evidence, the Hearings Officer concludes that proposed tower cannot meet the requirements ofDCC 18. I 28340(B)(5) because "there is no vegetative, structural or topographic screening available." One final issue warrants discussion, which is a question the Hearings Officer raised at the December 4, 2012 hearing, to which both Mr. Mark Shipman and Mr. White were kind enough to provide the Hearings Officer with briefing.4 My question was whether the federal Telecom-munications Act ("TCA") or the County code mandate that a cell tower be allowed once a gap in coverage has been identified by the applicant, despite the fact that visual impacts on nearby residents or scenic views cannot be adequately mitigated. Both Mr. Shipman and Mr. White appear to agree that the TCA does not preempt local land-use laws. They also appear to agree that the 91h Circuit Court of Appeals decision MetroPCS, Inc. v. City and County ofSan Francisco, 400 F 3d 715 (9th Cir. 2005) sets forth a test for determining whether a local government code effectively prohibits the provision of personal wireless services. However, they differ as to the forum in which that remed, may be sought. Mr. Shipman implies that a local hearings officer can administer the test set forth by the 91 Circuit as part of the local land-use order. Mr. White argues that the test must be administered by the appropriate federal court under Section 332(7XBXv) of the TCA after the local government has reached a final land use decision. After reviewing MetroPCS, and the most recent iteration ofthat case that I can find, T Mobile West Corp. v. City ofHuntington Beach_F.3d _(C.D. Cal., October 8, 2012), I agree with Mr. White. The local government must first reach a final determination denying a proposed telecommunication facility in order to provide the factual basis for any claim by an applicant that the government decision has effectively prohibited the provision of personal wireless services. It also appears that the local record in the matter provides at least the starting point for the federal court's analysis of whether an applicant can obtain relief under the TCA. 6. Any tower or monopole is finished with natural wood colors or colors selected from amongst colors approved by Ordinance 97-017. 4 This briefing appears in their December 21, 2012 letters to the Hearings Officer. CU-12-1S -American Tower 18 FINDING: The applicant has stated that color the monopole will be painted in Sherwin Williams Environmental Green. This criterion can be met. 7. Any required aviation lighting is shielded to the maximum extent allowed by FAA and/or ODOT-Aeronautics regulations. FINDING: As indicated in a foregoing finding, the application includes a letter from the FAA, as well as the Oregon Department ofAviation indicating that lighting ofthe facility is not required. This criterion is met 8. The form of lease for the site does not prevent the possibility of co location of additional wireless telecommunication facilities at the site. FINDING: The lease/agreement form submitted with the application allows the possibility of co-location under the Option to Lease section ofthe agreement. 9. Any tower or mouopole 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 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 ofthe proposed tower or monopole that identifies an area designed to provide the required spacing between antenna arrays of different carriers. FINDING: The application materials include a letter dated September 12,2012, from Kevin Arnold, Senior Construction Manager for American Tower which states: "Please use this letter as confirmation that American Tower will design and install a tower capable of supporting multiple tenants. American Tower's business model is based on this core principle. American Tower typically designs towers to accommodate up to 3 to 4 carriers on a regular monopole or self-support tower." This criterion could be met through a condition of approvaJ. 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 tbe facility sball be removed by the landowner. FINDING: This criterion could be met through a condition of approval. IV. CONCLUSION: Based on the above Findings of Fact and Conclusions ofLaw this application is DENIED. ~4.~ Kenneth D. Helm, Hearings Officer A DECISION BY THE HEARINGS OFFICER BECOMES FINAL TWELVE (12) DAYS AFTER THE DATE OF MAILING, UNLESS APPEALED BY A PARTY OF INTEREST. Dated this I sl day of March 2013 Mailed this I sl day of March, 2013 CU-12-1S -American Tower 19 Community Development Department Planning Division Building Safety Dlvis.lon Environmental So", Division P,O, Box.6005 117 NW Lafayette Avenue BendjOr$gon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or;us/cdd/ CERTIFICATE OF MAILING FILE NUMBER: CU-12-15 DOCUMENT/S MAILED: Hearings Officer's Decision MAPITAX LOT NUMBER: 17-14-29,600 I certify that on the 1 sl day of March, 2013, the attached Hearings Officer's decision, dated March 1, 2013, was/were mailed by first class mail, postage prepaid, to the person(s) and address( es) setforth on the attached list. Dated this 1 st day of March, 2013. COMMUNITY DEVELOPMENT DEPARTMENT By: Sher Buckner Rod Michealis Mark D. Shipman 1411 E. Pinecrest Road Saalfeld Griggs PC Spokane,VVA 99203 Park Place, Suite 300 250 Church Street SE Salem, OR 97301 Bruce VV. VVhite, Attorney, LLC P.O, Box 1298 Bend, OR 97709 Mark and Laura VVilke 25007 Kiwa Lane Bend, OR 97701 Addison and Connie Manley Margot Barron 1954 Gilham Road Rowan C. Holitz Eugene, OR 97401 62311 Dodds Road Bend, OR 97701 David VVarren Brandon A. Olsen 25387 Elk Lane AT &T Mobility Bend, OR 97701 19801 SVV 72 nd Avenue #200 Tualatin, OR 97062 Quality Services Performetl with Pride Larry White, Debra Elgas, Benjamin Elgas 25100 Alfalfa Market Road Bend, OR 97701 Carolyn Chase 24918 Bachelor Lane Bend, OR 97701 Wayne and Toni Morgan 62600 Dodds Road Bend. OR 97701 John and Patricia Devencenzi 62725 Juniper Road Bend, OR 97701 Frank Spiecker, Katya Spiecker and Gabriele Mimler 25261 Alfalfa Market Road Bend, OR 97701 Cherie L Appleby 26295 Willard Road Bend, OR 97701 Kent Salyer 62620 Juniper Road Bend, OR 97701 David and Wendy Magers 26275 Willard Road Bend, OR 97701 Frank and Joyce Knoblock 25184 Alfalfa Market Road Bend, OR 97701-9337 Kevin and Moriah White 25190 Alfalfa Market Road Bend, OR 97701 Troy Lehr and Barbara Mendoza-Lehr 24985 Bachelor Lane Bend, OR 97701 Gonzalo and Yolanda Mendoza 25085 Alpine Lane Bend, OR 97701 Mike Lake 25345 Alfalfa Market Road Bend, OR 97701 Noel Anderson 24920 Deer Lane Bend, OR 97701 Susan Marshall 63477 Greg Court Bend, OR 97701 Robert L. Warrenburg 3078 NE Stanton Avenue Bend, OR 97701 Roberta Vallejo 63818 Hunters Circle Bend, OR 97701 Erik Wendling 25200 Alfalfa Market Road Bend, OR 97701 Lawrence Callegari 2620 NE Keats Drive Bend, OR 97701 Chris Davis 2247 SE Pilatus Lane Bend, OR 97702 Boyd Brown 61877 Somerset Drive Bend, OR 97702 Linda McLaughlin P.O. Box 8281 Bend, OR 97708 Jerry Old ridge 60301 Woodside Loop Bend, OR 97702 Amanda McCarthy 69223 Crooked Horseshoe Road Sisters, OR 97759 Colleen Puterbaugh 2203 SW 36 th Ct. Redmond, OR 97756 Alice Tye 25840 Alfalfa Market Road Bend, OR 97701 Roger Beach 25263 Cultus Lane Bend, OR 97701 Joyce Cranston 25387 Elk Lane Bend, OR 97701 Cathy and Bryan Willis 25252 Raven Lane Bend, OR 97701 Greg and Lynne Shoffner 25231 Alfalfa Market Road Bend. OR 97701 Larry and Melodie Holliday 24890 Alfalfa Market Road Bend, OR 97701 Pat Anderson 24919 Bachelor Lane Bend. OR 97701 Loraine and Justin Green 26159 Willard Road Bend, OR 97701 Doug Butler 1870 NE Jackson Avenue Bend. OR 97701 Michele Anderson 25239 Cultus Lane Bend. OR 97701 Ron and Deana Dye 25700 Cultus Lane Bend, OR 97701 Kirk and Cynthia Carroll P.O. Box 191 Bend, OR 97709 Linda Armenta 25050 Alfalfa Market Road Bend, OR 97701 Jim Raffensperger 62950 Deschutes Road Bend, OR 97701