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HomeMy WebLinkAboutOrdinance 011 - Telecomm FacilitiesCommunity Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ STAFF REPORT TO: Board of County Commissioners FROM: Anthony Raguine, Senior Planner DATE: February 4, 2010 HEARING: March 1, 2010; February 24, 2010 Work Session SUBJECT: Text Amendment TA -09-2: Deschutes County Code; Sections 18.116.250, Wireless Telecommunications Facilities, and 18.128.340, Wireless Telecommunications Facilities. The Deschutes County Planning Commission held a work session on December 17, 2009 and a public hearing on January 28, 2010 to discuss a text amendment initiated by Deschutes County staff to Deschutes County Code (DCC) Sections 18.116.250 and 18.128.340. Sections 18.116.250 and 18.128.340 of the code were adopted via Ordinance 97-063', on November 12, 1997. Since that time, the Planning Division has processed numerous wireless telecommunication facility applications, with 27 applications processed since November 2008 alone. The purpose of the proposed text amendment is to update the above -referenced code sections based on staff's experience and recurrent issues identified by the wireless telecommunications industry. The Planning Commission voted 6-0 in favor of recommending approval of the text amendment. No comments from the public or from representatives of the wireless telecommunications industry have been received. PROPOSED TEXT AMENDMENT The proposed text amendment is detailed in the attached exhibit with text underlined for new language and shown as ctrikethrough for deleted language. Below staff provides explanations for the major proposed changes. 1 Prior to adoption of Ordinance 97-063, Deschutes County adopted interim regulations for siting wireless telecommunications facilities via Ordinance 97-017. Quality Services Performed with Pride DCC 18.116.250, Wireless Telecommunications Facilities 18.116.250(A) Staff proposes to change the maximum equipment cabinet or shelter square footage from 120 square feet to 200 square feet. When the original ordinance was drafted, a structure that was 120 square feet or Tess in size did not require a building permit. Since then, the building code has been changed to allow a structure up to 200 square feet in size without a building permit. 18.116.250(A)(1) One of the underlying principles in the current ordinance is to encourage co -location am minimize the need for more towers or monopoles. The county provided an incentive tc operators to co -locate by including streamlined procedures under Tiers 1 and 2, which do nor require a conditional use permit. However, we have found that the limitations in the lease area language in this section has frustrated that effort to encourage co -location. As currently written, this subsection would require all equipment cabinets and shelters to be located within the existing lease area for carriers that wanted to co -locate an additional set of antennas on an existing tower or monopole. What staff has found is that many of the existing lease areas for approved wireless telecommunications sites are too small to accommodate additional equipment cabinets or shelters. As a result, carriers have been required to apply for a conditional use permit when co -locating only because their equipment cabinets were sited outside of the existing lease area. This change would continue to promote co -location without unduly exacting additional land use permits or fees when the necessary equipment cannot be sited within the existing lease area. 18.116.250(A)(2 & 3) Similar to the co -location discussion above, the county provided an incentive to operators to co - locate on existing vertical support structures or buildings. However, this incentive has been underutilized because of the date limitation present in the current code. Subsections 2 & 3 allow co -location of antennas on a vertical support structure or building. However, the vertical structure or building must have been existing on or before November 12, 1997, the date of adoption of Ordinance 97-063. This restriction was included in the original wireless telecom ordinance because of fears that antennas on top of buildings and other vertical support structures would proliferate across Deschutes County. This has not been the case. Based on staff's experience, the vast majority of wireless antennas require much greater height than can be achieved via co -location on an existing vertical structure or building. However, staff has encountered a few situations where co -location was a viable option except that the structure was not in existence as of November 12, 1997. This change would provide greater flexibility to carriers when determining possible antenna locations and may preclude the need to construct a new tower or monopole. DCC 18.128.340, Wireless Telecommunications Facilities 18.128.340(A)(1) This subsection requires the applicant to hold a pre -application neighborhood meeting. In a few cases, members of the community have expressed frustration that the meeting was not held 2 near the proposed wireless telecom facility location. This change would put a greater emphasis on holding the neighborhood meeting in the general vicinity of the proposed facility location. REVIEW CRITERIA AND FINDINGS The proposed amendment revises sections of Deschutes County Code Title 18 specific to wireless telecommunications facilities. Deschutes County lacks specific criteria in DCC Titles 18, 22, or 23 for reviewing a legislative zoning text amendment. Therefore, the county mus' determine that the proposed Title 18 text amendments are consistent with the Federa Telecommunications Act of 1996, state statute if the County Zoning Code and Comprehensive: Plan have not been amended to adopt required changes in state statute, the Statewide Planning Goals ("Goals") if the County Comprehensive Plan has not been amended to adopt requires: changes in the Goals, the County's Comprehensive Plan to the extent it has beer acknowledged by the Oregon Department of Land Conservation and Development as complying with the Statewide Planning Goals, and the County's zoning code. The parameters for evaluating these text amendments are based on whether there are adequate factual findings that demonstrate this consistency. State Statutes Other than those statutes specific to allowed uses in the Exclusive Farm Use, Forest Use, ano Surface Mining, staff is unaware of any state statutes that specifically regulate the siting of wireless telecommunications facilities. The proposed text amendments do not alter any allowed uses or propose to add uses not already allowed in the above -referenced resource zones. Additionally, the statutes regarding siting of facilities in these resource zones have already been incorporated into the County Code. Thus, staff believes no state statutes are relevant to the proposed text amendments. Statewide Planning Goals No changes to the Goals have been adopted by the Oregon Land Conservation and Development Commission since the County's Comprehensive Plan was last acknowledged as being in compliance with the Goals. Therefore, because these proposed changes are to the County's zoning code that implements the County's Comprehensive Plan, the Goals are not applicable to these changes. Deschutes County Comprehensive Plan Based on staff's review of the Comprehensive Plan, an argument could be made that any number of chapters in the Comprehensive Plan, such as Chapter 23.24, Rural Development; Chapter 23.88, Agricultural Lands; Chapter 23.92, Forest Lands, could be affected by changes to the wireless telecommunications facility regulations since these towers are allowed in most of the county zones. The proposed changes, however, are minor. The change from 120 to 200 square feet for the equipment cabinet does not result in much more land being used by any future facility. The other suggested changes to both DCC Chapter 18.116 and Chapter 18.128 provide primarily clarifying and few additions to or reductions in the existing application requirements and approval criteria. Furthermore, as stated above, many of the proposed changes are intended to encourage co -location, which will likely minimize the number of towers built resulting in less impact to each of the zones. Thus, a thorough discussion of each of the Comprehensive Plan chapters is not necessary. 3 RECOMMENDATIONS Staff recommends that the Board; 1. Listen to public testimony, discuss the proposed text amendments, and determine whether to approve and sign Ordinance No. 2010-011 or deny the text amendments. Attachments: 1. Chapter 18.116, Supplementary Provisions 2. Chapter 18.128, Conditional Uses 3. Proposed Ordinance 4 18.116.250. Wireless Telecommunications Facilities. A. Tier i Facilities. Wireless telecommunications facilities that do not require aviation lighting, that utilize natural wood colors or muted tones from amongst colors approved by Ordinance 97- 017, that utilize a radio equipment cabinet or shelter that is Tess than 100 square feet in area and less than 10 feet in height, and that meet the following standards are allowed outright in any zone other than the Exclusive Farm Use, the Surface Mining Zone, and the Forest Zones and shall not be subject to any other provision of the zone: 1. Facilities established by co -locating an additional set of antennas on an existing wireless telecommunications tower or monopole that do not exceed the County approved height of the tower or monopole, Notwithstanding any provision of DCC 18.116.250(A),_facilities_ established under DCC 18.1 16.250(A)(1) are permitted outright in any zoning district. 2. Facilities that make use of existing vertical, lawfully established structures, including but not limited to power or telephone utility poles or towers, parking lot or street lighting standards or flagpoles. „A pole location in a public right of way shall not be fenced. Antennas established on an existing vertical structure shall be installed so that they do not exceed the height of the existing vertical structure by more than 15 feet. New structures in this category are limited to equipment shelters that do not require a building permit. Walk- in equipment shelters shall be set back out of any road right of way at least 20 feet back from the pole location. Any necessary road right of way permits shall be obtained from the Deschutes County Road Department. Equipment cabinets shall be subject only to the road right of way setback requirements. 3. Facilities that are established by attaching or placing an antenna or set of antennas on an existing, lawfully established building not designated as an historic structure, where the antenna array does not exceed the height of the building by more than 15 feet. All equipment shall be stored inside a building _ _ 4. Facilities that include installation of a new wood monopole that does not exceed the height limit of the underlying zone, and does not exceed 45 feet in height. All equipment shall be stored in a building that has a floor „Area that does not exceed,(}O square feet in area ,JL. does not exceed 10 feet in height. _The monopole, and any building, shall be set back from adjacent property lines according to the setbacks of the underlying zone. Any microwave dishes installed on the monopole shall not exceed a diameter of„four{feet. No more than two dishes shall be installed on a monopole or tower. The perimeter of a lease area for a facility established under DCC 18.116.250(A)111 shall be landscaped with shrubs eight feet in height and planted a maximum of 24 inches on center. B. Tier 2 Facilities. Wireless telecommunications facilities that do not require aviation lighting, that utilize a wood monopole for supporting antennas and/or microwave dishes and that meet the criteria in DCC 18.1 16.250 are allowed outright, subject to site plan review under DCC 18.116.250(B) (and not DCC 18.124.060) in the following zones: La Pine Commercial District (LPCD), La Pine Industrial District (LPID), Rural Industrial (R1), Rural Service Center (RSC), Rural Service Center-Wickiup Junction (RSC-WJ), Terrebonne Commercial District (TeC), and Tumalo Commercial District (TuC). Lattice towers or metal monopoles are not permitted with a Tier 2 facility. 1. An application for site plan review for a Tier 2 wireless telecommunications facility shall meet the following criteria: a. Maximum Monopole Height. In the LPCD, LP1D, RSC, RSC-WJ, TeC, and TuC zones, the maximum height of a monopole, includin4 antennas and, microwave dishes for a wireless telecommunications facility shall be 60 feet from finished grade. In the Chapter 18.116 (11/2008) Deleted: 120 Deleted: , and do not add g ound based equipment outside the existir ; lease area f Deleted: For the purposes if DCC i 8.116.250(A), a vertical str cture is "existing" if it was construct ;d after receiving all required land u e and/or building permits on or befot November f 12, 1997, the date of adopt ii of Ordinance 97-063. Deleted: For the purpoi ; of DCC 18.1 16.250(A), a building xists if it was constructed after receiving 311 required land use and/or building p :mics and was occupied on or before No :tuber 12, 1997, the date of adoption )f Ordinance 97-063. Deleted: roof - - _- Deleted: Deleted: 120 Deleted: or Deleted: Deleted: three Deleted: Deleted: that support . Deleted /or R1 Zone, the maximum height of a monopole, includin; antennas and microwave dishes, for a wireless telecommunications facility shall be 75 feet from finished grade. b. Setbacks. All equipment shelters shall be set back from property lines according to the required setbacks of the underlying zone. A monopole shall be set back from any adjacent dwelling a distance equal to the height of the monopole, including antennas and microwave dishes, from finished grade, or according to the setbacks of the underlying zone, whichever is greater. c. Shelters. Any equipment shelter shall be finished with natural aggregate materials or from colors approved with Ordinance 97-017. d. Landscaping. The perimeter of a lease area shall be landscaped with plant materials appropriate for its location. The lessee shall continuously maintain all installed landscaping and any existing landscaping used to screen a facility. e. Cabinets. Any equipment cabinets shall be finished with colors from amongst those colors approved with Ordinance 97-063. Such colors shall be non -reflective and neutral. f. Fences. A sight obscuring fence, as defined by DCC Title 18, shall be installed around the perimeter of the lease area. The sight obscuring fence shall surround the monopole and the equipment shelter. 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. I. A request for a written determination from the County as to whether a proposed facility falls within Tiers 1 or 2 of DCC 18.1 16.250 shall be submitted to the County in writing and accompanied by a site plan and proposed schematics of the facility. if the County can issue a written determination without exercising discretion or by making a land use decision as defined under ORS 197.015(10), the County shall respond to the request in writing. 2. A request for a written determination from the County as to whether a proposed facility falls within Tiers I or 2 of DCC 18.116.250 that involves exercising discretion or making a land use decision shall be submitted and acted upon as a request for a declaratory ruling under DCC 22.40. (Ord. 2000-19 §1, 2000; Ord. 97-063 §1, 1997; Ord. 97-017 §7, 1997) Chapter 18.116 (11/2008) 1 Deleted: that supports J j Deleted: for J j Deleted: 18.128340. Wireless Telecommunications Facilities. An application for a conditional use permit for a wireless telecommunications facility or its equivalent in the EFU, Forest, or Surface Mining Zones shall comply with the applicable standards, setbacks and criteria of the base zone and any combining zone and the following requirements. Site plan review under DCC 18.124 including site plan review for a use that would otherwise require site plan review under DCC 18.84 shall not be required. A. Application Requirements. An application for a wireless telecommunications facility shall comply with the following meeting, notice, and submittal requirements: 1, Neighborhood Meeting. Prior to ,su_bmis sine of a land use application fora wireless telecommunications facility, the applicant shall provide notice of and hold a meeting with interested owners of property nearby to a potential facility location. To the greatest extent practicable the neighborhood meeting shall be held in the general vicinity of the proposed wireless telecommunications facility. Notice shall be in writing and shall be mailed no less than 10 days prior to the date set for the meeting to owners of record of property within: a. One thousand three hundred twenty feet for a tower or monopole no greater than 100 feet in height, and b. Two thousand feet for a tower or monopole at least 100 feet and no higher than 150 feet in height. Such notice shall not take the place of notice required by DCC Title 22. 2. Pre -Application Conference. Applicant shall attend a scheduled pre -application conference prior to submission of a land use application. An application for a wireless telecommunications facility permit will not be deemed complete until the applicant has had a pre -application conference with Planning Division staff. 3. Submittal Requirements. An application for a conditional use permit for a wireless telecommunications facility shall include: a. A copy of the blank lease form. b. A copy of the applicant's Federal Communications Commission license. c. A map that shows the applicant's search ring for the proposed site and the properties within the search ring, including locations of existing telecommunications towers or monopoles. d. A copy of the written notice of the required neighborhood meeting and a certificate of mailing showing that the notice was mailed to the list of property owners falling within the notice area designated under DCC 18.128.340(A)(1). 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. 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. g. A copy of the design specifications, including proposed colors, and/or elevation of an antenna array proposed with the facility. h. An elevation drawing of the facility and a photographic simulation of the facility showing how it would fit into the landscape. i. A copy of a letter of determination from the Federal Aviation Administration or the Oregon Department of dkviation as to whether or not aviation lighting would be_ required for the proposed facility. B. Approval Criteria: An application for a wireless telecommunication facility will be approved upon findings that: 1. The facility will not be located on irrigated land, as defined by DCC 18.04.030. Deleted: i 1 Deleted: scheduling a pre -application conference with Planning Divist©n staff Deleted: Transportation - Aeronautics Division 2. The applicant has considered other sites in its search area that would have less visual impact as viewed from nearby residences than the site proposed and has determined that any less intrusive sites are either unavailable or do not provide the communications coverage necessary. To meet this criterion, the applicant must demonstrate that it has made a good faith effort to co -locate its antennas and microwave dishes on existing monopoles in the area to be served. The applicant can demonstrate this by submitting a statement from a qualified engineer that indicates whether the necessary service can or cannot be provided by co -location within the area to be served. 3. The facility is sited using trees, vegetation, and topography to the maximum extent practicable to screen the facility 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. 5. En 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. 6. Any tower or monopole is finished with natural wood colors or colors selected from amongst colors approved by Ordinance 97-017. 7. Any required aviation lighting is shielded to the maximum extent allowed by FAA and/or ODOT-Aeronautics regulations. 8. The form of lease for the site does not prevent the possibility of co -location of additional wireless telecommunication facilities at the site. 9. Any tower or monopole shall be designed in a manner that it can carry the antennas of at least one additional wireless carrier. This criterion may be satisfied by submitting the statement of a licensed structural engineer licensed in Oregon that the monopole or tower has been designed with sufficient strength to carry such an additional antenna array and by elevation drawings of the proposed tower or monopole that identifies an area designed to provide the required spacing between antenna arrays of different carriers. 10. Any approval of a wireless telecommunication facility shall include a condition that if the facility is left unused or is abandoned by all wireless providers located on the facility for more than one year the facility shall be removed by the landowner. (Ord. 2000-019 §2, 2000; Ord. 97-063 §2, 1997; Ord. 97-017 §8, 1997) REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Deschutes County Code Title 18, Section 18.116.250, Wireless Telecommunications Facilities, and Section 18.128.340, Wireless Telecommunications Facilities, to Provide Greater Siting Flexibility for Co -Location by Removing Specific Restrictions. ORDINANCE NO. 2010-011 WHEREAS, Deschutes County Planning Division staff initiated a text amendment to Deschutes County Code ("DCC") Title 18, Section 18.116.250, Wireless Telecommunications Facilities, and Section 18.128.340, Wireless Telecommunications Facilities., to provide greater siting flexibility for co -location by removing specific restrictions; and WHEREAS, after notice was give in accordance with applicable law, a public hearing was held on January 28, 2010 before the Deschutes County Planning Commission and, on January 28, 2010 the Planning Commission recommended approval of the text amendments; and WHEREAS, after notice was given in accordance with applicable law, a public hearing was held ( n March 1, 2010 before the Board of County Commissioners ("Board"); and WHEREAS, the Board considered this matter after a public hearing on March 1, 2010 and concluded that the public will benefit from changes to the land use regulations; now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. DCC Title 18, Section 18.116.250, Wireless Telecommunications Facilities, is amended to read as described in Exhibit "A", attached and incorporated by reference herein, with new language underlined and deleted language setforth in stn khrottgh. Section 2. AMENDMENT. DCC Title 18, Section 18.128.340, Wireless Telecommunications Facilities, is amended to read as described in Exhibit "B", attached and incorporated by reference herein, wit new language underlined and deleted language setforth in stfilietlirettgl3. III PAGE 1 OF 2 - ORDINANCE NO. 2010-011 ([DATE BOARD IS SCHEDULED TO ADOPT ORDINANCE]) Section 3. FINDINGS. The Board adopts as its findings in support of this decision, the Staff Rep art attached as Exhibit "C" and incorporated by reference herein. Dated this of , 2010 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: DENNIS R. LUKE, Chair ALAN UNGER, Vice Chair Recording Secretary TAMMY BANEY, Commissioner Date of 1 s` Reading: day of , 2010. Date of 2nd Reading: day of , 2010. Record of Adoption Vote: Commissioner Yes No Abstained Excused Dennis R. Luke Alan Unger Tammy Baney Effective date: day of , 2010. PAGE 2 OF 2 - ORDINANCE NO. 2010-011 ([DATE BOARD IS SCHEDULED TO ADOPT ORDINANCE])