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HomeMy WebLinkAboutMemo - Alfalfa Cell TowerCommunity Development Department Planning Dlvtslon BuIlding safety 0ivIsI0n EnYlronmental 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/cddj MEMORANDUM To: Deschutes County Board of Commissioners From: Paul Blikstad, Senior Planner Kevin Harrison, Principal Planner Date: May 23, 2013 Re: Appeal of cell tower decision The following is designed to help the Board in their review of the Hearings Officer's denial of CU-12-15. The Hearings Officer found that the applicant failed to meet the following approval criteria for the reasons indicated in bullet points. 1. DCC 18.128.340(B)(2). The applicant has considered other sites in its search are that would have less visual impact as viewed from nearby residences than the site proposed and has determined that any less intrusive sites are either unavailable or do not provide the communications coverage necessary. To meet this criterion, the applicant must demonstrate that it has made a good faith effort to co-locate its antennas on existing monopoles in the area to be served. The applicant can demonstrate this by submitting a statement from a qualified engineer that indicates whether the necessary service can or cannot be provided by co­ location with the area to be served. • The Hearings Officer found, based on review of the language and prior Hearings Officer's decisions, that this criterion requires 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." This criterion requires an applicant to consider alternatives suggested by opponents. • The Hearings Officer found that the applicant did not consider the alternative of utilizing the existing transmission lines along Elk Lane. • The applicant did not respond to opponents' suggestion that the tower might be located on nearby DSL property in a way that only incrementally impacts views from nearby residences which are already impacted by the transmission lines. • The applicant's dismissal of the DSL property did not adequately respond to the opponents' reasons for suggesting that property as an alternative. The argument submitted by the applicant did 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. Opponents identified locations both on the west side and the east side of the Quality Seroices Performed with Pride DSL property that might represent lesser visual impacts to the surrounding residences, but the applicant did not seriously respond to those suggestions. • In circumstances such as this one where the record shows that negative visual impacts of a proposed tower, including impacts to scenic views protected by the code, are largely unavoidable and likely to be experienced by a significant number of nearby residences, a larger search ring including EFU lands should be considered. • The Hearings Officer found that demonstrated negative visual impacts on surrounding properties can render urban and non-resource lands (Le., RR-10 and MUA-10 zoned properties) "unavailable" for a proposed telecommunications facility under DCC 18.16.038(A)(3). • The Hearings Officer could not find 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 protected scenic views. 2. DCC 18.128.340(B)(5). In all cases, the applicant shall site the facility in a manner to minimize its impact on scenic views and shall site the facility using trees, vegetation, and topography in order to screen it to the maximum extent practicable from view from protected roadways. Towers or monopoles shall not be sited in locations where there is no vegetative, structural or topographic screening available. • The Hearings Officer found that this criterion has never been the central focus of a telecommunications facility decision. In reviewing past hearings officer's decisions, this criterion has been somewhat inconsistently interpreted and applied. Therefore, the question presented by this application has not been directly addressed in prior hearings officer's decisions, nor has LUBA or the Court of Appeals previously reviewed this provision. Staff notes that, to our knowledge, the Board has never ruled directly on this provision. • The Hearings Officer found that this criterion is directed at "scenic views" and that all applications ("in all cases") are obligated to "minimize impacts" on scenic views. • The Hearings Officer concluded that this section is only triggered where "scenic views" are present and will be interfered with by the presence of the telecommunications facility. • The Hearings Officer identified the scenic views present in this area as those of the open desert plateau, the Cascade Mountains, Horse Ridge, Pine Mountain and the Paulina Mountains. • The Hearings Officer found that the second sentence in the criterion modifies the first sentence such that where, as here, scenic views are present, the siting of a telecommunications tower shall be disallowed where there is no vegetation, structures or terrain to meaningfully screen the facility. In other words, the "screening" must actually be effective at screening a proposed tower. The Hearings Officer found that neither the vegetation, structures nor topographic features will meaningfully screen the proposed tower. Staff is anticipating a supplemental written submission from the applicant prior to the appeal hearing. As soon as that comes in, we will forward it to the Board. Just a reminder that the appeal hearing is scheduled for Thursday, June 13th at 6:00 p.m., and is to be held at the Alfalfa Community Building, which is located near the Alfalfa Store.