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HomeMy WebLinkAboutU.S. Cellular Facility HearingCommunity 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/ MEMORANDUM September 10, 2008 To: Deschutes Board of County Commissioners From: Anthony Raguine, Senior Planner Subject: Appeal of Hearings Officer's Approval of AD -08-5, US Cellular BACKGROUND The applicant, US Cellular, filed an application for an Administrative Determination (AD -08-5) for a 62 -foot -tall wireless telecommunication facility (faux pine tree) and equipment shelter. The project was referred to the Hearings Officer, with the initial public hearing on June 3, 2008. Due to a noticing error, the hearing was continued to July 22, 2008. The Hearings Officer issued the decision on August 27, 2008 (attached). A timely appeal was filed on September 8, 2008 by various neighbors, all represented by Bruce White. The appeal identifies eight (8) errors in the Hearings Officer decision and six (6) reasons why the Board should hear the appeal (see attached appeal). Finally, the appellants request that the Board hear the appeal on the record. APPEAL The notice of appeal describes relevant background facts and the reasons for appeal. As noted above, the appellants request an on the record review of the proposed telecommunications facility. 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, under its own motion, decides to hear the appeal de novo (see DCC 22.32.027(6)(1) and (3)). 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:22.32.027(B)(4)). DECLINING REVIEW If the Board of County Commissioners 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 Quality Services Performed with Pride 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 an appeal, the Board may consider only: 1) The record developed 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 has reviewed the Hearings Officer decision and agrees with the approval. Staff does not believe the decision presents a policy issue for the county. For these reasons, staff recommends that the Board not hear the appeal. 150 -DAY LAND USE CLOCK Deschutes County Code Section 22.24.140 governs continuances or extensions, and the effect a continucance or extension has on the 150 -day land use clock. Subsection (E) states, A continuance or record extension granted under 22.24.140 shall be subject to the 150•• day time limit unless the continuance or extension is requested or otherwise agreed to by the applicant. When the record is left open or a continuance is granted after a request by an applicant, the time period during which the 150 -day clock is suspended shall in clude the time period made available to the applicant and any time period given to parties to resond to the applicant's submittal. As indicated in the Hearings Officer decision, the 150 -day land use clock ends on October 14 2008. Specifically, the decision states, The Hearings Officer left the written evidentiary record open through August 5, 2008 an(' allowed the applicant through August 12, 2008 to submit final argument pursuant to ORS 197.763. Because the applicant agreed to these record extensions, under Section 22.24.140(E) of the county's procedures ordinance the 150 -day period was tolled for 22 days (from July 22 through August 12) and now expires on October 14, 2008. After receiving the decision, the applicant's legal counsel contacted staff concerned that an erro- was made with regard to the land use clock. The applicant's legal counsel referred staff to DCC 22.24.130(D) which states, An applicant shall be allowed, unless waived, to submit final written arguments in support of its application after the record has closed within such time limits as the Hearings Body shall set. The Hearings Body shall allow applicant at least seven days to submit its argument, which time shall be counted against the 150 -day clock. [Emphasis added] Based on DCC 22.24.130(D), the applicant's legal counsel argued that the seven-day fin<.I argument period should count against the 150 -day land use clock, and that the clock should en i on October 7, 2008 and not October 14. As detailed above, the Hearings Officer references Oregon Revised Statute (ORS) 197.763 with regard to the seven-day final argument period. Staff notes that ORS 197.763(6)(e) states the seven-day final argument period, ...shall not be subject to the limitations of ORS 215.427... Oregon Revised Statute 215.427 provides the 150 -day limit for final action on land use decisions for counties. Staff's reading the Hearings Officer decision, ORS 197.763(6)(e), and ORS 215.427 together indicate that the seven-day final argument period is not subject to the 150 -day land use clock and, therefore, the clock for AD -08-5 expires on October 14, 2008. However, staff also recognizes that the language of DCC 22.24.130(D) appears to conflict with the statutes identified above. The Board should be aware that the applicant may challenge the expiration of the 150 -day land use clock. SCHEDULE Staff requests that this item be scheduled for the Board's regular meeting on Septebmer 17, 2008. Please feel free to contact me with any questions or concerns. Attachments BRUCE W. WHITE, ATTORNEY, LLC September 8, 2008 Hand Delivered Deschutes County Planning Division 117 NW Lafayette Ave. Bend, OR 97701 Re: U.S. Cellular Tax Lot 18-13-19-106 AD -08-05 Enclosed please find applications for an appeal to the Board of County Commissioners of the above -referenced application. Appellants have hired me to represent them in this appeal. Although Appellants have signed separate appeals forms, they are appealing this decision jointly. Accordingly, only a single appeal fee is submitted. Any response to this appeal should be directed to me at the contact information indicated on this letter. Appellants have requested and receive a copy of the CD disk of the hearings and are having the contents of the disk transcribed. A transcript of the hearing will be forwarded as soon as the transcript is completed. Sincerely, k") L-0/€ Bruce W. White c. Clients P.O. BOX 1298 • BEND, OR • 97709 PHONE: (541) 382-2085 SCANNED SEP - 8 2008 TES D { Community Development Department Planning Division 117 NW Lafayette Avenue, Bend, OR 97701-1925 (541) 388-6575 - Fax (541) 385-1764 http://wwt.v.deschutes.org/cdd APPEAL APPLICATION FEE: EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board 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. 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 form 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. Appellant's Name (print): CJS11/ �f �,e D Phone: (6 1(() () ? 2i a lcL? Mailing Address: 22 3 Co 0 + Ck0. Land Use Application Being Appealed: A D -011-S' City/State/Zip: Bj ` o (�, 9 "7'7 O -2-- Property Description: Township la Range 1,3 Section Appellant's Signature: J ti,D 11 Tax Lot lU EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON 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 WRITTEN RECORDS. (over) —oc& 1/07 { Community Development Department Planning Onnsion 117 NW Lafayette Avenue. Bend. OR 97 701-1 92 5 (541) 388-6575 - Fox (541) 385-1764 http://www.deschutes.org/cdd APPEAL APPLICATION FEE: EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board 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. 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 form 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. Appellant's Name (print): Mailing Address: '2-2 3 b 0 Land Use Application Being Appealed: A -D-0 t S Property Description: To Appellant's Signature: Phone: 3i7. --S1813 City/State/Zip: R 61,--4 ©k / t-770--2.- l% Range (3 Section AArtJ/e. Tax Lot 10 EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON 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 WRITTEN RECORDS. (over) 1/07 -k Community Development Department Planning Division 117 NW Lafayette Avenue, Bend, OR 97701-1925 (541) 388-6575 - Fax (541) 385-1764 http://www.deschutes.org/cdd APPEAL APPLICATION FEE: EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board 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. 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 form 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. 1t Appellant's Name (print); M . e. rig Iv (Is. T 6-Efizx Phone: (Syr) 3/8 — g 2Z ? )6 Mailing Address: 6(533 4\(Zivi (1 f'IKi=/ PO Ad )6 City/State/Zip: 13,,S , p2 7 770? Land Use Application Being Appealed: A9- 0$—OS Property Description: Township it Range ( Section t XAppellant's Signature. Tax Lot 10C EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON 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 WRITTEN RECORDS. (over) 1/07 Community Development Department Planning Division 117 NW Lafayette Avenue. Bend, OR 97701-1925 (541) 388-6575 - Fax (541) 385-1764 http://www.deschutes.org/cdd APPEAL APPLICATION FEE: EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board 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. 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 form 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. Appellant's Name (print): v 10 t'ta f s C . MSA 2Qre +f Mailing Address: 2-Z 3 J 0 p .% Land Use Application Being Appealed: 4'4' g -S' Phone: Hi) 3(9-(03 7 City/State/Zip: / Q A. '3 770 2— Property Description: Township 1% Range 13 Section Appellant's Signature: 5144,144.42,1 c y� Tax Lot 101, EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON 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 WRITTEN RECORDS. (over) 1/07 cu -k Community Development Department Q Planning Division 117 NW Lafayette Avenue, Bend, OR 97701-1925 (541) 388-6575 - Fax (541) 385-1764 http://www.deschutes.org/cdd APPEAL APPLICATION FEE: EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board 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. It is the responslblllty 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 thls form 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. f Appellant's Name (print): ' % C.,etA (``fire . )6Phone:(51 f) ‘/JU J, 7 14 Mailing Address: 40.3 tlj' /-c,�_y A /' n L.l rl /14 )4 City/State/Zip: 6 en cA 9) G Land Use Application Being Appealed: A 9-01- o r Property Description: Township It Range 1.3 Section t°I Tax Lot IN, c:. Appellant's Signature: 4z)....1 EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON 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 WRITTEN RECORDS. (over) 1107 Community Development Department Planning Division 117 NW Lafayette Avenue, Bend, OR 97701-1925 (541) 388-6575 - Fax [541) 385-1764 http://www.deschutes.org/cdd APPEAL APPLICATION FEE: EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board 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. 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 form 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. Appellant's Name (print): 120-71 f1'1cAt4O?7 Phone:0) YDS / V Mailing Address: 17 o ity/State/Zip: c9 Land Use Application Being Appealed: A-4 i/ o§ Property Description: Township_ (% Range U Section 1 Tax Lot 06 Appellant's Signatur • EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON 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 WRIT1EN RECORDS. (over) 1/07 Community Development Department Planning Division 117 NW Lafayette Avenue, Bend, DR 97701-1925 (541) 3886575 - Fax (541) 385-1764 http://www.deschutes.org/cdd APPEAL APPLICATION FEE: EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board 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. 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 form 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. Appellant's Name (print): C1 Mailing Address: ��3 L o 1l t ✓\ b��l r�-i1.t`- Phone: (J 7I) 7?0 `+ (f I �t C.iCkrg.. d • City/State/Zip:-g/A,.,1// OtC 9 Land Use Application Being Appealed: IAD 11-.i; Property Description: Township 1 b Range 13 Section (1 Tax Lot (a (, . n, -t Appellant's Signature: EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON 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 WRITTEN RECORDS. (over) 1/07 JT Community Development Department Planning Division 117 NW Lafayette Avenue. Bend, DR 97701-1925 (541) 308-6575 - Fax (541) 385-1764 http://www.deschutes.org/cdd APPEAL APPLICATION FEE: EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board 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. 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 form 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. Appellant's Name (print): A ��" AleEdv-\.. (.1\)a -TLA -,Phone: ) 0 -6 / ( I Mailing Address: 2-2-� 3Ri G� R.44�/�C . City/State/Zip: -3e.v..dOQ 70 2_ � � 7 Land Use Application Being Appealed: 41)- b &-S Property Description: Townshi i>S Range 13 Section (') Tax Lot (0(, Appellant's Signature: �-cr EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON 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 WRITTEN RECORDS. (over) 1/07 u/ Community Development Department { Planning Division 117 NW Lafayette Avenue, Bend, OR 97701-1925 (541) 388-6575 - Fax (541) 385-1764 http://www.deschutes.org/cdd APPEAL APPLICATION FEE: EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board 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. 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 form 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. NO Appellant's Name (print): Q� I q0 Y Phone: Of T8 P 3 0 7 N6 Mailing Address: akrci flr`titu(c) Vr. ?of %CCity/State/Zip: Sc -r-.4 Or 9790 Z Land Use Application Being Appealed: A D -ox -o r Property Description: Township 1 % Range (3 Section 10I Tax Lot MID V Appellant's Signature: �Z EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON 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 WRITTEN RECORDS. (over) 1/07 Community Development Department Planning Division 117 NW Lafayette Avenue, Bend, OR 97701.1925 (541) 388-6575 - Fax (541) 385-1764 http://www.deschutes.org/cdd APPEAL APPLICATION FEE: EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board 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. 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 form 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. /Appellant's Name (print):JANIij . 5T) 't LL 6Phone: ( ) 1 - 7 Mailing Address: 22.14c ( Sky kj; zL.0 _ )c City/State/Zip: / .e4- , 6) 9 % 7 Land Use Application Being Appealed: A9 -oh -os -- Property Description: Township Ifs, Range 13 Section (I Tax Lot tab Appellant's Signature::-. / 1 EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON 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 WRITTEN RECORDS. (over) 1/07 Joint Supplement to Notice of Appeal of Anderson, Fiero, Getz, Martin, McGee, McMahon, Nathan, Pedigo and Strell File No. AD -08-05 I. General Background a) Description of Decision Being Appealed: A decision issued by Hearings Officer Karen Green on August 27, 2008, in File No. AD - 08 -05 concerning a proposal by applicant United States Cellular Operating Company of Medford to site a 60 -foot monopine cell tower and associated support facilities on property located at 60316 Arnold Market Road, identified as Tax Lot 106 on Assessor's Map 18-13-19, also known as Parcel 3 of partition plat PP -2002-47, owned by Albert Gonzales. b) Appellants' Standing: Appellants are the following, joining in a single appeal before the Deschutes County Board of Commissioners: Jon and Kathryn Fiero 22360 Rickard Rd. Bend, OR 97702 Mel and Judy Getz 60336 Arnold Market Loop Bend, OR 97702 Morris Martin 22310 Rickard Road Bend, OR 97702 Todd and Shanda McGee 2422 Ravenwood Drive Bend, OR 97701 Robert and Deborah McMahon PO Box 902 Redmond, OR 97756 Calvin Nathan Audrey Anderson 22340 Rickard Rd. Bend, OR 97702 Richard and Joyce Pedigo 60341 Arnold Market Rd. Bend, OR 97702 Jane Strell 22401 Skyview Lane Bend, OR 97702 Appellants live or own property within sight and sound and within the notice area of the subject property and participated orally or in writing in the hearing below. c) 150 -day timeclock: The 150 -day time clock will expire on October 14, 2008. II. Specific Appeal Issues and Reasons for Hearing Appeal A. Issues on Appeal 1) The Hearings Officer erred in concluding that the proposed cell tower constitutes a "utility facility" as that term is used in DCC 18.16.025(I) and ORS 215.283(1)(d). The Hearings Officer's relied on a definition of "utility" from the Deschutes County zoning ordinance without determining whether that definition applies to uses in the EFU zone. 2) The Hearings Officer erred in approving the subject application in that there was no evidence to support her conclusion that there were no alternative sites for siting the proposed cell tower on utility poles towers. She further erred in placing the burden of proof on the opponents to identify alternative sites where such facilities might be placed. 3) The Hearings Officer erred in relying upon biased, unsubstantiated and conclusory information to determine that there was a need for additional cell tower coverage and this cell tower in particular. 4) The Hearings Officer erred in finding under DCC 18.16.038(A) that there were no reasonable alternative sites, when applicant did not present evidence that all alternative sites on nearby non -resource lands had been considered. This is particularly true with regard to other properties located within the nearest block of RR -10 lands located to the northwest of the subject site within which alternative site No. 1 was identified. By not requiring the applicant to affirmatively show that all nearby non -resource lands had been considered as alternative sites, the Hearings Officer impermissibly shifted the burden of proof from the applicant to the opponents. 5) The Hearings Officer erred in relying upon an alternatives analysis provided by Applicant that was not conducted in good faith, given that the applicant had selected and put under contract its preferred site over two months before it contacted the owners of potential alternative sites and before it produced the engineering analysis purporting to show that the other sites were not feasible from a technical and engineering standpoint. Applicant's limited inquiry into the availability of alternative sites undermines the credibility of its alternative sites analysis and undercuts the Hearings Officer's reliance on Applicant's report. 6) The Hearings Officer erred in finding under DCC 18.16.038(A)(1) that it was not feasible from an engineering or a technical standpoint to site the proposed cell tower on alternative sites identified by applicant in the following particulars • She relied upon biased, unsubstantiated and conclusory evidence from the applicant's technical personnel; • Applicant's technical data was conclusory in that it did not establish what the performance standards were, if any, it used to judge the technical feasibility of the subject site and the alternative sites, which made it impossible to determine whether the analysis was valid. If the performance differences at the various alternative sites at various heights were only a matter of degree, there was no way for the Hearings Officer or the opponents to make an informed judgment on this issue. • The Hearings Officer erred in finding that Alternative Site 1 would locate the proposed tower "much closer" to the Bend market; in reality from the maps supplied by applicant, alternative Site No. 1 was less than one mile closer to the Bend market area than the subject site. • The Hearings Officer erred in finding credible the applicant's technical data relating to Site No. 1 that in all objective areas a 60 -foot tower at Alternative Site No. 1 was viewed as being inadequate whereas the same height tower in located in an area that is located further away from some of the target areas was as providing better service. 7) The Hearings Officer erred in her interpretation that the proposed cell tower is "locationally dependent" as that term is used in DCC 18.16.038(A)(2) and therefore meets one of the exception criteria of DCC 18.16.038(A)(2). The facility itself is not required to cross EFU lands. Only the signals cross EFU lands and the wireless signals are not a part of the facility as that term is used in DCC 18.16.038(A)(2). 8) The Hearings Officer erred in that her finding that there was a lack of available urban and non -resource lands under DCC 18.16.028(A)(3) in the following respects: • The applicant presented only a limited range of alternative sites and did not present for examination all alternative sites in the nearest RR -10 exception area to the northwest of the subject site. The Hearings Officer allowed one particular site to represent the entirety of that block of RR -10 land, without regard to whether additional areas within that RR -10 block could host the proposed cell tower. • The Hearings Officer relied upon biased, conclusory and unsubstantiated evidence from Applicant's engineers regarding the technical feasibility of the alternative sites. • The Hearings Officer's determination that the alternative sites were unavailable rested upon an unwarranted assumption, without any specific factual basis, that cell towers on the alternative sites could not obtain zoning approval. • The Hearings Officer's determination that the alternative sites were not available was based upon a limited inquiry not conducted in good faith at a time when the applicant had contractually secured its preferred site. B. Reasons County Commissioners should hear this appeal There are good reasons why the Board should hear this appeal, as follows: 1) By allowing the Applicant to supply only conclusory technical information as to the feasibility of the proposed site versus the alternative sites on non -resource lands and by allowing applicant to submit evidence of the availability of alternative sites on non -resource lands and then relying upon that information to approve the subject cell tower, the Hearings Officer's analysis in effect consigns all future cell towers in the rural areas to EFU zones, in contravention to the policy underlying protection of EFU zones. The Board's review of this case is required to give a more rigorous analysis and to set the tone for the Hearings Officer's in the level of detailed information that cell tower applicants should be required to provide. 2) The applicant provided only conclusory information as to the relative technical feasibility of the subject site and the alternative sites, and the Hearings Officer erred in relying upon such information. The subject application should not have been approved on the record presented. 3) By hearing this appeal, the Board can provide guidance to Hearings Officers on what degree of proof should be required of cell tower applicants in deciding upon future applications. 4) The Board is in a better position to review this application than is LUBA, because the Board has more latitude to determine which evidence it should rely upon between Applicants and the Opponents. 5) By hearing this appeal, the Board can correct the Hearings Officer's errors so that even if the decision is appealed further, any subsequent appeal is based upon a full and fair consideration of all the evidence that the Hearings Officer was required to consider. 6) The record is not voluminous and the Board can efficiently conduct an on the record hearing. III. Scope of Review Pursuant to DCC 22.32.027(B)(1), appellant requests a review on the record of their appeal. DECISION OF DESCHUTES COUNTY HEARINGS QFFICER FILE NUMBER: AD -08-5 APPLICANT: United States Cellular Operating Company of Medford 8410 West Bryn Mawr Avenue, Suite 700 zr, 303/ Chicago, Illinois 60631-3486 PROPERTY OWNERS: Albert and Susan Gonzalez P.O. Box 8298 Bend, Oregon 97708 APPLICANT'S AGENT: Dan MacKinney Wireless Site Technology, LLC 9323 N. Government Way, #220 Hayden, Idaho 83835 c. APPLICANT'S ATTORNEY: Erik Glatte Kellington, Krack, Richmond, Blackhurst & Glatte, LLP 23 Newtown Street P.O. Box 1583 Medford, Oregon 97501 REQUEST: The applicant requests an administrative determination authorizing it to establish a wireless communication facility, consisting of a 62 -foot -tall monopine, 12 -foot by 20 -foot equipment shelter, back- up power generator and propane tank, perimeter security fence, and access driveway on an approximately 79 -acre parcel zoned EFU-TRB and located on Arnold Market Road east of Bend. STAFF REVIEWER: Anthony Raguine, Senior Planner HEARING DATES: June 3 and July 22, 2008 RECORD CLOSED: August 12, 2008 I. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.04, Title, Purpose and Definitions * Section 18.04.030, Definitions 2. Chapter 18.16, Exclusive Farm Use (EFU) Zones US Cellular AD -08-5 Page 1 of 29 * Section 18.16.025. Uses Permitted Subject to the Special Provisions under DCC Section 18.16.038 and a Review Under DCC Chapter 18.124 for Items C through M * Section 18.16.038, Special Conditions for Certain Uses Listed under DCC 18.16.025 * Section 18.16.060, Dimensional Standards * Section 18.16.070, Yards B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.24, Land Use Action Hearings * Section 22.24.030, Notice of Hearing or Administrative Action * Section 22.24.140, Continuances or Record Extensions C. Oregon Revised Statutes (ORS) 1. Chapter 215, County Planning * ORS 215.275, Siting Standards for Utility Facilities in EFU Zones * ORS 215.283, Uses Permitted in Exclusive Farm Use Zones in Nonmarginal Lands Counties II. FINDINGS OF FACT: A. Location: The subject property is located at 60316 Arnold Market Road, Bend, and is further identified as Tax Lot 106 on Deschutes County Assessor's Map 18-13-19. B. Zoning and Plan Designation: The subject property is zoned Exclusive Farm Use— Tumalo/Redmond/Bend Subzone (EFU-TRB), and is designated Agriculture on the comprehensive plan map. C. Site Description: The subject property is 79.02 acres in size and rectangular in shape. Topography varies from level to gently rolling. Vegetation consists of scattered mature juniper trees up to approximately 35 feet in height and native brush and grasses. The property is developed with a single-family dwelling, accessory structure and barn located in the northern half of the property. There is an Arnold Irrigation District lateral canal traversing the northern half of the property from southwest to northeast. The property has access from Arnold Market Road via a private driveway with a gated entrance. The property is not engaged in farm use and is not receiving farm tax deferral. The proposed site for the wireless communication facility is a 360 -square -foot leased area near the US Cellular AD -08-5 Page 2 of 29 eastern property boundary northeast of the existing dwelling and barn. D. Surrounding Zoning and Land Uses: The subject property is surrounded by land zoned EFU-TRB, some of which is engaged in farm use. The majority of surrounding properties have dwellings. Land further to the north and east is zoned EFU-Alfalfa Subzone (EFU- AL) and Rural Residential (RR -10). Further to the southeast is land zoned EFU-Horse Ridge Subzone (EFU-HR) and RR -10. Further to the south is land zoned EFU-AL, RR - 10 and Forest Use (F-1). Further to the west is land zoned EFU-TRB. The surrounding RR -10 zoned lands are developed with small-scale farms, rural residences, and rural subdivisions including Sundance Meadows and Conestoga Hills. A private airstrip owned and operated by Sundance Meadows, Inc. is located south of the subject property, however there is no Airport Safety Combining (AS) Zone for this private airstrip. E. Procedural History: The subject application was filed on March 24, 2008. By a letter dated April 3, 2008 the Planning Division advised the applicant that the application was incomplete and gave the applicant 30 days to submit the missing information. The applicant submitted supplemental information (hereafter supplemental burden of proof) on April 15, 2008, and the county accepted the application as complete on April 23, 2008. Therefore, the 150 -day period for issuance of a final local land use decision under ORS 215.477 would have expired on September 22, 2008. The initial public hearing on the application was held on June 3, 2008. At the hearing, Senior Planner Anthony Raguine advised the Hearings Officer and the parties that the county had failed to provide the required mailed notice of hearing to all property owners entitled to such notice. The Hearings Officer received testimony and evidence and continued the hearing to a date to be determined in order to allow sufficient time for the county to mail the required hearing notice. Subsequently, July 22, 2008 was selected as the date for the continued public hearing, and on June 9, 2008 the county mailed notice of the continued hearing. On June 13, 2008 the Hearings Officer conducted a site visit to the subject property and vicinity accompanied by Anthony Raguine. At the continued public hearing on July 22, 2008, the Hearings Officer disclosed her observations and impressions from the site visit and again received testimony and evidence. The Hearings Officer left the written evidentiary record open through August 5, 2008 and allowed the applicant through August 12, 2008 to submit final argument pursuant to ORS 197.763. Because the applicant agreed to these record extensions, under Section 22.24.140(E) of the county's procedures ordinance the 150 -day period was tolled for 22 days (from July 22 through August 12) and now expires on October 14, 2008. As of the date of this decision there remain 49 days in the extended 150 -day period. F. Proposal: The applicant proposes to establish a wireless communication facility on a 360 -square -foot leased area on the subject property to serve a geographic area bounded by Rickard Road on the north, Windsong Lane on the west, and Calgary Drive on the south, and including land east of Gosney Road, east of Horse Butte, and southwest of US Highway 20 East. The proposed facility would have the following components: US Cellular AD -08-5 Page 3 of 29 • A 62 -foot -tall tower consisting of a "monopine" (artificial pine tree) on a concrete foundation;' • cellular telephone antennas painted to blend with the color of the monopine and mounted at the 42- and 57 -foot levels on the monopine;2 • a 12' by 20' prefabricated concrete equipment shelter on a concrete slab foundation and with a brown exterior finish that would have a remote monitoring system for fire and security; • a back-up power generator and propane tank; • a 6 -foot -tall chain link fence around the leased area with a locked gate; • a gravel -surfaced vehicle parking area within the security fence; and • a gravel -surfaced access driveway extending from the existing driveway to the dwelling from Arnold Market Road.3 The proposed monopine would have the following setbacks from the north, east, south and west property boundaries, respectively: 693 feet, 77 feet, 1,946 feet, and 1,243 feet. The proposed monopine would be approximately 920 feet from the nearest existing residence outside the subject property.4 Access to the proposed facility would be restricted through use of a locked gate in the perimeter security fence. Following construction of the facility, vehicle traffic would consist of occasional visits to the site by the applicant's staff. The applicant does not propose to light the monopine. G. Public/Private Agency Comments: The Planning Division sent notice of the applicant's 1 The applicant's burden of proof narrative states the monopine would be 60 feet tall. However, at the initial public hearing the applicant's representative Dan MacKinney testified, and the design drawing attached to the applicant's burden of proof (Drawing A2) shows, that the tower portion of the monopine would be 60 feet tall but the highest "branches" of the monopine would. be 62 feet tall. Therefore, the Hearings Officer finds the proposed monopine height is 62 feet. 2 The applicant's own antennas would be placed at the 57 -foot level, and the 42 -foot level would be reserved for co -location of another utility's antennas. The diagram labeled "Al" and attached to the applicant's burden of proof also shows a location for a "future carrier" tower east of the applicant's proposed monopine. However, the applicant has not requested, and the Hearings Officer does not approve, a location for a second tower on the subject property. 3 The applicant's burden of proof states the access driveway extending from the dwelling's driveway to the leased area consists of existing dirt roads on the subject property on which gravel would be placed. 4 The record indicates the county has issued conditional use permits for additional dwellings in the area surrounding the subject property, and at least one of these dwellings when built would be located closer than 920 feet to the applicant's proposed facility. US Cellular AD -08-5 Page 4 of 29 proposal to a number of public and private agencies and received responses from: the Deschutes County Assessor, Building Division, and Environmental Health Division; the Bend Fire Department; and the Arnold Irrigation District. These comments are set forth verbatim at pages 2-3 of the staff report and/or are included in the record. H. Public Notice and Comments: The Planning Division mailed individual written notice of the applicant's proposal and the public hearing to the owners of record of all property located within 2,250 feet of the subject property. This extended notice area (750 is the typical notice area for land use proposals on EFU-zoned land) was required by Section 22.24.030(A)(4) of the county's procedures ordinance. That provision requires expanded notice areas for structures exceeding 30 feet in height, calculated by adding 750 feet of notice area for every 30 feet of proposed structure height above 30 feet or increment thereof — in this case, for a 62 -foot -tall tower, 1,500 additional feet of notice area. In addition, notice of the public hearing was published in the Bend "Bulletin" newspaper, and the subject property was posted with a notice of proposed land use action sign. As of the date the record in this matter closed, the county had received 36 letters in response to these notices. In addition, 17 members of the public testified at the two public hearings. Public comments are addressed in the findings below. I. Lot of Record: The subject property is a legal lot of record having been created as Parcel 3 of Partition Plat 1995-38. III. CONCLUSIONS OF LAW: A. Preliminary Issues: FINDINGS: Opponents raised four issues that do not relate directly to any applicable approval criteria and are addressed in the findings below. 1. Inadequate Notice. Opponent Steve Helland, President of Sundance Meadows, Inc., argued notice of the applicant's proposal was not adequate because it did not include individual mailed notice to each of the corporation's approximately 600 members who own a share of the corporation's approximately 900 acres of land located within the expanded notice area. Section 22.24.030 requires the county to provide individual written notice of the public hearing to the "owners of record of property as shown on the most recent property tax assessment roll of property located." The record indicates the Assessor's tax assessment roll does not show the individual share owners of the corporation's property. Therefore, the Hearings Officer finds the county did not err in failing to mail individual written notice to each share owner. 2. Conditional Use/Compatibility Considerations. Opponents argue the applicant's proposal should be treated as a conditional use so that Hearings Officer can consider compatibility issues such as impacts to scenic views, wildlife, property values, and human health from radio frequency (RF) radiation. As discussed in the findings below, the Hearings Officer has found the applicant's proposal is a use permitted outright in the EFU Zone subject only to the special standards for utility facilities discussed in detail in those findings. Therefore, I have no authority to review the applicant's proposal as a conditional use or to consider conditional use US Cellular AD -08-5 Page 5 of 29 compatibility factors.5 3. Conflict with Private Airstrip. Opponents argue the applicant's proposal should be denied because the proposed 62 -foot -tall monopine would interfere with operations at and near Sundance Meadows' private airstrip. As discussed in the Findings of Fact above, the county has not adopted an AS Zone to protect this airstrip. In addition, the record includes as Hearing Exhibit 1 (July 22, 2008) a copy of the Federal Aviation Administration's (FAA's) June 18, 2008 "Determination of No Hazard to Air Navigation" for the applicant's proposed facility, concluding that the proposed monopine at a height of 70 feet would not be a hazard to air navigation and that neither marking nor lighting the monopine is necessary for aviation safety. The Hearings Officer finds that even if there were evidence in this record that the applicant's proposed monopine would interfere with aircraft operating at or near the private airstrip, the FAA's "no hazard" determination preempts a conflicting determination by the county. US Cellular v. Klamath County, 53 Or LUBA 442 (2007). Therefore, I find no merit to this argument. 4. County Conflict of Interest. Opponents Mel and Judy Getz appear to argue the county cannot fairly consider this application because: "the County has an existing business relationship with the applicant which may influence said application; as an example the County has shown no sensitivity to the environment allowing a stark cell tower just off 27`h Street near the County landfill (see attached photograph) which does and will effect [sic] property owners view from the east as well as an eyesore from 27`h Street and beyond" Mr. and Mrs. Getz offered no evidence of an actual conflict of interest on the part of the Hearings Officer or members of the Deschutes County Board of Commissioners (board). And no opponent objected to my qualifications to act as the hearings officer in this matter when given the opportunity to do so at both the initial and continued public hearings. Therefore, I find no merit to this argument. B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.16, Exclusive Farm Use Zones a. Section 18.16.025, Uses Permitted Subject to the Special Provisions Under DCC Section 18.16.038 and a Review Under DCC Chapter 18.124 for Items C through M. * * * I. Utility facilities necessary for public service, including wetland 5 In any case, the county is preempted by federal law — the Telecommunications Act of 1996 -- from denying or conditioning approval of a proposed wireless communication facility on the basis of impacts from RF radiation. Save Our Skyline v. City of Bend, 48 LUBA 192 (2004). US Cellular AD -08-5 Page 6 of 29 waste treatment systems, but not including commercial facilities for the purpose of generating electrical power for public use by sale and transmission towers over 200 feet in height. (Emphasis added.) FINDINGS: At the outset, this section states the permitted uses listed Paragraphs C through M, including "utility facilities necessary for public service," are subject to site plan review under Chapter 18.124. However, the county does not require site plan approval for such facilities because Sections 18.16.025 and 18.16.038 were adopted to implement the provisions of ORS 215.283 and 215.275, respectively, which allow transmission towers less than 200 feet tall in the EFU Zones as long as the applicant demonstrates such facilities are "necessary for public service." For this reason, the county cannot apply additional local criteria such as those for site plan or conditional use approval. Brentmar v. Jackson County, 321 Or 481, 496, 900 P2d 1030 (1995); GCC Bend, LLC (AD -06-13). UTILITY FACILITY Opponents argue the applicant's proposed wireless communication facility does not constitute a "utility facility," defined in Section 18.04.030 as follows: "Utility facility" means any major structures, excluding hydroelectric facilities, owned or operated by a public, private or cooperative electric, fuel, communications, sewage or water company for the generation, transmission, distribution or processing of its products or for the disposal of cooling water, waste or by-products, and including power transmission lines, major trunk pipelines, power substations, telecommunications facilities, water towers, sewage lagoons, sanitary landfills and similar facilities, but excluding local sewer, water, gas, telephone and power distribution lines, and similar minor facilities allowed in any zone. This definition shall not include wireless telecommunications facilities where such facilities are listed as a separate use in a zone. (Emphasis added.) In this Hearings Officer's decision in HGB (AD -07-12), I held an AM radio broadcaster was a "utility facility" under this definition because it was licensed by the Federal Communications Commission (FCC), based on the following findings: "The Hearings Officer finds the ordinary definition of `communication' — Le., `transmitting; giving or exchanging of information'3 — clearly encompasses the applicant's proposed transmission of AM radio signals. In addition, as noted in the staff report, in previous decisions the county has found radio transmitting facilities including towers to constitute "utility facilities' under this definition!' 3 Webster's New World Dictionary and Thesaurus, Second Edition. E.g., GCC Bend, LLC (AD -06-13)." The Hearings Officer adheres to these findings. The record indicates the applicant is a private US Cellular AD -08-5 Page 7 of 29 wireless telecommunications company that is licensed by the FCC to provide wireless telecommunications service. (Hearing Exhibit 2 (July 22, 2008)). Opponent Arnold Market Gosney Rickard Neighbors (AMGRN) questions whether the applicant's proposed access driveway constitutes a "utility facility" under Section 18.04.030. Opponents do not question whether the back-up power generator, propane tank, and security fence proposed for the lease area are part of the proposed utility. The Hearings Officer finds the proposed access driveway probably cannot be considered a "similar facility" under that definition because it bears no resemblance to the listed facilities included in the "utility facility" definition. An access driveway arguably falls under the definition of "accessory use" in Section 18.04.030 — "a use or structure incidental and subordinate to the main use of the property, and located on the same lot as the main use." However, Section 18.16.025 does not include "accessory uses" in the list of uses permitted subject to the special provisions in Section 18.16.038.6 The remaining question, then, is whether the applicant's proposed access driveway is a separate use that requires approval in order to site on the subject property. It is clear from Section 18.16.038 that many of the uses permitted in the EFU Zone under this section would require some type of access driveway even though such a use is not specifically listed as permitted in the zone — e.g., farm -related dwellings, churches, and schools. Section 18.16.038 requires site plan approval for churches and schools, and the Hearings Officer is aware that access driveways to such facilities have been subjected to site plan review in conjunction with the primary use even though none of the special standards in Section 18.16.038 addresses or establishes standards for access driveways. I also am aware the county reviews access driveways in conjunction with its review of farm -related dwellings, suggesting the county considers the driveways to be part of those proposed residential uses. Thus, it appears from the provisions of Section 18.16.038 and the county's practice that access driveways to uses permitted under Section 18.16.038 — including utility facilities -- are considered and reviewed as part of the permitted use, in essentially the same manner as accessory uses are reviewed. For the foregoing reasons, the Hearings Officer finds the applicant's entire proposal, including the access driveway, back-up power generator, propane tank, and security fence, is a "utility facility" under Section 18.04.030. NECESSARY FOR PUBLIC SERVICE The remaining question under Section 18.16.025 is whether the applicant's proposal satisfies the requirements of Paragraph (I) of this section, which establishes two requirements: • if the "utility facility" includes towers, they must not be over 200 feet in height; and • the utility facility must be "necessary for public service." 6 This is in contrast to Section 18.16.020 that includes "accessory uses" in the uses permitted outright in the EFU Zone, and Section 18.16.030 which includes "accessory uses" as part of some permitted uses — e.g., nonfarm dwellings. US Cellular AD -08-5 Page 8 of 29 The applicant's proposal includes a monopine less than 200 feet tall, therefore satisfying the first requirement. Compliance with the second requirement is addressed in the findings immediately below under Section 18.16.038. b. Section 18.16.038, Special Conditions for Certain Uses Listed Under DCC 18.16.025 A. A utility facility necessary for public use allowed under DCC j. 18.16.025(C) shall be one that is necessary to be situated in an agricultural zone in order for service to be provided. To demonstrate that a utility facility is necessary, an applicant must show that reasonable alternatives have been considered and that the facility must be sited in an exclusive farm use zone due to one or more of the following factors: 1. Technical and engineering feasibility; 2. The proposed facility is locationally dependent. A utility facility is locationally dependent if it must cross land in one or more areas zoned for exclusive farm use in order to achieve a reasonably direct route or to meet unique geographical needs that cannot be satisfied on other lands. 3. Lack of available urban and nonresource lands; 4. Availability of existing rights of way 5. Public health and safety; and 6. Other requirements of state and federal agencies; 7. Costs associated with any of the factors listed in 1-6 above may be considered, but cost alone may not be the only consideration in determining that a utility facility is necessary for public service. Land costs shall not be included when considering alternative locations for substantially similar utility facilities that are not substantially similar. 8. The owner of a utility facility approved under this section shall be responsible for restoring, as nearly as possible, to its former condition any agricultural land and associated improvements that are damaged or otherwise disturbed by the siting, maintenance, repair or reconstruction of the facility. Nothing in this US Cellular AD -08-5 Page 9 of 29 subsection shall prevent the owner of the facility from requiring a bond or other security from a contractor or otherwise imposing on a contractor the responsibility for restoration. 9. In addition to the provisions of 1-6 above, the establishment or extension of a sewer system as defined in OAR 660-011-0060(1)(f) in an exclusive farm use zone shall be subject to the provisions of OAR 660-011- 0060. 10. The provisions above do not apply to interstate gas pipelines and associated facilities authorized by and subject to regulation by the Federal Energy Regulatory Commission. FINDINGS: This section is identical to, and implements, the provisions of ORS 215.275. It establishes two requirements the applicant must meet to demonstrate a proposed utility facility is "necessary for public service:" • the applicant considered reasonable alternatives to siting the facility on the EFU-zoned subject property; and • the proposed facility must be sited on EFU-zoned land to satisfy "one or more" of the seven locational factors. 1. Interpretation of Statutory Requirements. The meaning of these requirements has been the subject of several LUBA and court decisions. The most comprehensive discussion is found in Sprint PCS v. Washington County, 42 Or LUBA 512 (2002), and the Court of Appeal's decision affirming LUBA's decision (186 Or App 470, 63 P.3d 1261 (2003)). LUBA's decision remanded the county's decision to deny an application for a wireless telecommunication facility on EFU land. On appeal, after a lengthy discussion of the text, context and legislative history of the language in ORS 215.275, the Court of Appeals held the term "reasonable alternative" refers to a site not on EFU land, and that when deciding whether it is necessary to site a public utility facility on EFU-zoned land local governments must analyze any alternative sites based on ORS 215.275. The court also considered whether and to what degree local governments may defer to the applicant's stated service and business objectives in determining whether there are reasonable alternatives to siting the proposed facility on EFU-zoned land. The court held that local governments may consider the utility applicant's service and business objectives in evaluating the reasonableness of alternative sites, and that there is nothing in ORS 215.275 that requires a utility applicant to consider a different methodology for providing the utility service in order to place its facility on non-EFU land. However, the court also held ORS 215.275 implies an obligation on the part of a utility to consider different facility designs in order to adapt the applicant's chosen methodology to non-EFU alternative sites. The court agreed with LUBA that US Cellular AD -08-5 Page 10 of 29 at some point the difference between the applicant's proposed design and an alternative design that would permit siting on non-EFU land could become so great that a non-EFU site could not be considered a "reasonable alternative." Finally, the court held that in determining what constitutes a "reasonable alternative," local governments should be guided by the overarching statutory goal -- i.e., the provision of public utility service — and if the utility's objectives can be met by siting a facility with a different design on non-EFU land, the local government cannot find the proposed facility must be sited on EFU-zoned land to provide the public utility service. 2. Applicant's Objectives. The applicant's burden of proof states it determined its existing network and facilities in Deschutes County do not provide adequate wireless service in the area southeast of Bend bounded by Rickard Road on the north, Windsong Lane on the west, and Calgary Drive on the south, and including land east of Gosney Road, east of Horse Butte, and southwest of US Highway 20 East. This targeted coverage area is depicted on Figure 1 attached to the applicant's burden of proof. At the initial public hearing the applicant's representative Dan MacKinney testified the applicant recognized the need for better service southeast of Bend because of the increase in population density in this area. At the continued public hearing, Melinda Hogan, manager of the applicant's Bend store, testified that for the last two years she had received increasing complaints from US Cellular customers in southeast Bend about no service or poor service and dropped calls in that area. For these reasons, the applicant engaged in a process to identify sites for a new cellular facility that would provide coverage in this area. The applicant identified a "search ring" based on computer modeling of existing and desired wireless signal coverage in the geographic area described above, and taking into account the applicant's existing wireless telecommunications facility network in Bend. Based on this modeling, the applicant determined that antennas mounted on a 60 -foot -tall tower on the subject property would provide the desired signal strength and coverage. The applicant submitted into the record as Hearing Exhibit 2 (June 3, 2008) a map depicting this enhanced coverage with the proposed new facility. The applicant's original and supplemental burdens of proof identify the following key service and business objectives for siting the proposed wireless communication facility: • providing signal coverage in the geographic area described above; • providing an opportunity for co -location for another user in accordance with the applicant's business policies and practices;8 • providing a location that does not create overlapping coverage or interference with the applicant's other wireless communication facilities; and ' At the continued public hearing Jerry Millard and Mark Ernst, US Cellular customers who live east and north of the subject property, respectively, testified their cellular telephone coverage at and near their homes is very poor with dropped calls being a common occurrence. 8 Co -location also appears to be the county's policy, indicated by co -location requirements in the conditional use approval criteria for wireless telecommunication facilities in Section 18.128.340(B). US Cellular AD -08-5 Page 11 of 29 • consisting of a tower no taller than necessary to achieve the above objectives. The applicant's original and supplemental burdens of proof state the applicant determined antennas mounted on a 60 -foot -tall tower on the subject property would achieve these objectives, would fully utilize the site's potential, and would be economically feasible. The applicant's representative Dan MacKinney testified at the initial public hearing that the applicant chose a monopine rather than a monopole or lattice tower because of the presence of mature ponderosa pines in the area surrounding the subject property and because the applicant believed a monopine would have fewer visual impacts than a monopole or lattice tower. Opponents argue the applicant has not demonstrated its proposed facility is "necessary" at all. They assert cellular telephone service is a "luxury" that need not be accommodated by the county. The Hearings Officer finds Congress determined through enactment of the Telecommunications Act of 1996 that wireless communication service is sufficiently important to the country's economy and welfare to justify legislation to encourage and protect its development.9 Several opponents who live in the area surrounding the subject property testified they have adequate cellular telephone service from US Cellular and other service providers. Opponent Deborah McMahon argued the applicant's own website service coverage maps show it has adequate service coverage in this part of the Bend area. Copies of these maps are included in the record at pages 1-4 of Ms. McMahon's July 23, 2008 submission. In its July 28, 2008 response, the applicant pointed out that the website information submitted by Ms. McMahon omitted the following important disclaimer language: "The map shows an approximation of service coverage. Actual coverage may vary." The applicant also argues, and the Hearings Officer agrees, that the fact there is some coverage in the area — either from the applicant's facilities or another utility's facilities -- does not preclude approval of a facility intended and designed to improve that service. T -Mobile v. Yamhill County, Or LUBA (LUBA No. 2007-105, October, 2007). Opponents also dispute the evidence submitted by the applicant showing the level of actual signal strength and coverage in the area to be served by the proposed facility. In particular, opponents assert the applicant's "drive tests" conducted to determine signal strength, coverage, and service gaps were unrealistic and did not produce reliable or credible coverage data. The applicant's RF engineer Doug Briedwell testified at the continued public hearing that in late June, 2008 he conducted two "drive tests" in the geographic area surrounding the subject property in order to test the applicant's signal strength and coverage. During these tests, calls were made between two US Cellular telephones, one placed on the car's dashboard and the other on the car's passenger seat. Mr. Briedwell stated these calls were made using the applicant's existing network and that no alterations were made to the power or signal from existing facilities, and in particular to the applicant's existing facility at the intersection of Ward and Rastovich Roads in southeast Bend. 9 The record includes as Hearing Exhibit 6 (July 22, 2008) an electronic mail message from Rick Silbaugh, Public Safety Systems Coordinator for the Deschutes County 9-1-1 Service District, stating that in the first half of 2008, 64% of all calls to 9-1-1 were made from cellular phones. US Cellular AD -08-5 Page 12 of 29 Mr. Briedwell submitted drawings depicting the results of his June "drive tests," included in the record as Hearing Exhibits 3 and 4 (July 22, 2008), as well as a narrative describing the tests and included in the record as Hearing Exhibit 5 (July 22, 2008). These exhibits and Mr. Briedwell's hearing testimony indicated the "drive tests" revealed that while there are a few areas southeast of Bend where the applicant's signal is strong (depicted on the maps by green marks), there are significant areas in which its signal is too weak to provide adequate in -vehicle and/or in -building coverage (depicted on the maps by yellow and orange marks), and in which calls are dropped or cannot be completed (depicted on the maps by small black telephone symbols). In response to questioning by the Hearings Officer, Mr. Briedwell acknowledged that many cellular telephone calls are made to or from land lines rather than between cell phones, and that he would expect there to be fewer dropped or missed calls and somewhat better signal strength and coverage with calls between a cellular phone and a land line. Nevertheless, Mr. Briedwell stated that in his opinion the June "drive tests" accurately simulated "real world" conditions. In its July 29, 2008 memorandum the applicant submitted the results of a third "drive test" conducted on July 28, 2008 in the area surrounding the subject property, again using the applicant's existing facility network without modifications. However, this test involved calls made between a cellular phone on the car's passenger seat and a land line located in Bend. The results of this drive test, depicted in a narrative and map attached to the applicant's July 29, 2008 memorandum, show a larger area of adequate in -vehicle and in -building signal, particularly near the applicant's existing facility at the intersection of Ward and Rastovich Roads (depicted in green), and fewer dropped calls. However, the map shows there are still significant areas in which the signal strength was too weak for adequate in -vehicle and in -building coverage (depicted in yellow and orange). The Hearings Officer finds the applicant's "drive test" evidence reliably and credibly establishes the basis for the applicant's conclusion that it is necessary to improve its existing wireless communication service in the area surrounding the subject property by increasing signal strength and coverage area and reducing the number of dropped calls. The remaining question is whether the applicant's proposed facility must be sited on the EFU- zoned subject property to provide the public utility service that would achieve the applicant's business and service objectives. As discussed above, to meet this requirement the applicant must demonstrate both that it considered "reasonable alternatives" and that the facility must be sited in an EFU Zone due to "one or more" of the seven locational factors in Section 18.16.038(A). 3. Reasonable Alternatives Analysis. The applicant's original and supplemental burdens of proof state its "reasonable alternatives" analysis looked for non-EFU sites within the search ring that could meet the service and business objectives identified above, and described that process as including the following components: • identifying non-EFU zoned land in the vicinity of the subject property; • identifying existing structures (power poles, other towers, etc.) outside the EFU-zoned land for possible co -location of the applicant's antennas; US Cellular AD -08-5 Page 13 of 29 • reviewing the non-EFU lands for elevation, topography, existing development, and tree heights; • performing computer modeling to determine the tower height necessary to provide the desired signal strength and coverage in the identified geographic area, including the height necessary to clear topography, structures, and trees; and • evaluating potential non-EFU sites for their ability to meet conditional use approval criteria, if applicable, for the siting of a wireless telecommunications facility. a. Sites Not Considered. The applicant's alternative sites analysis did not include other EFU- zoned land. Opponent AMGRN's consulting planner Ted Kreines of Kreines & Kreines, Inc., argued in his July 29, 2008 report, attached to AMGRN's July 29, 2008 submission, that the analysis should have included other EFU-zoned land. That argument ignores the plain language of Section 18.16.038 that clearly identifies the object of the required alternative sites analysis as determining if there are reasonable alternative sites on non-EFU land and not finding more suitable EFU-zoned sites. The applicant's initial alternative sites analysis did not include federal land in the vicinity of the subject property. These lands are owned and managed by either the United States Forest Service (USFS) or the United States Bureau of Land Management (BLM). Technically these lands are not zoned because the county does not have jurisdiction over federal land, although the Hearings Officer is aware the county considers federal land surrounding Bend to be "resource land." I find including federal land in alternative site analyses is at best problematic inasmuch as federal approvals for wireless communications facilities are not as easily issued as they are for such facilities on private land. See, Save Our Skyline v. City of Bend, 48 LUBA 129 (2004). This fact is demonstrated by the lengthy and complex federal regulations — 43 CFR Part 2800 -- governing the granting of rights-of-way on federal land for uses such as the applicant's proposed facility, a copy of which is included in the applicant's July 28, 2008 submission. Although Dan MacKinney testified the applicant has obtained permits to site its facilities on federal land, I find it is not appropriate to consider sites on federal land as "reasonable" alternatives to EFU-zoned land given their significant resource values and the difficulty of obtaining federal rights-of-way. The applicant's alternative sites analysis also did not include its existing facility located northwest of the subject property at the intersection of Ward and Rastovich Roads on land zoned EFU-TRB. At the continued public hearing Doug Briedwell testified the applicant did not consider this site a reasonable alternative because its 2007 request to increase the height of the Ward/Rastovich Road monopole from 35 to 60 feet was denied by Deschutes County Hearings Officer Kenneth Helm (AD -07-13). A copy of that decision is included in this record. The decision notes the existing Ward/Rastovich Road facility was approved in 2004 (CU -04-22),1° on the basis that alternative co -location sites had been considered and found unsuitable. Hearings Officer Helm's decision includes the following pertinent findings: 10 Hearings Officer Helm noted it was not clear why the county treated the applicant's 2004 proposal as a conditional use in light of Section 18.16.038. US Cellular AD -08-5 Page 14 of 29 "US Cellular's current application attempts to rely on the alternative site analysis from CU -4-22 to demonstrate compliance with DCC 18.16.038. That analysis only examined the option of co -locating with other providers in accordance with DCC 18.128.340(B)(2).However, that prior analysis is not sufficient to comply with either DCC 18.16.038 or ORS 215.275 because these provisions enforce a more rigorous standard for considering alternative sites. * * * Because this application relies on the alternative sites analysis of CU -04-22, the record is insufficient to demonstrate that non-EFU lands have been considered. * For these reasons, I find that this application does not sufficiently consider reasonable alternatives to the proposed facility location." Hearings Officer Helm's decision went on to find that the applicant had adequately demonstrated there was a "technical and engineering feasibility" justification for siting the proposed taller monopole at the Ward/Rastovich Road site to comply with Section 18.16.038(A)(1). Opponents argue that given the basis for the denial in AD -07-13 the applicant was not justified in excluding this facility from consideration as a "reasonable alternative." I agree with opponents that there is no reason to conclude from the decision in AD -07-13 that the applicant could not conduct an alternative sites analysis for the Ward/Rastovich Road facility that demonstrates there are no reasonable alternatives on EFU-zoned land. Nevertheless, as discussed above, the purpose of the alternative sites analysis is to identify non-EFU sites — not other EFU sites that are preferable to the subject property. Because the applicant's existing Ward/Rastovich Road site is on EFU- zoned land the applicant was not required to consider it.11 Finally, the applicant's alternative sites analysis does not include any existing utility poles. The applicant's original burden of proof states there were no existing utility poles within the search ring suitable for the co -location of its wireless antennas. Opponents Katherine Stuckey and AMGRN stated such poles do exist, but did not identify their locations so that they could be reviewed and evaluated in this proceeding. Moreover, in objecting to the applicant's proposed 60 -foot -tall tower, many opponents asserted such a tall facility should not be approved on the subject property because they were required to install their utilities underground. The Hearings Officer finds from the evidence in the record that the applicant did not err in failing to consider existing utility poles. b. Sites Considered. The applicant's alternative sites analysis resulted in the identification of five alternative sites located between 0.8 and 2.4 miles from the subject property, and depicted on the map included in the record as Hearing Exhibit 1 (July 22, 2008). All of these sites are located on 11 The applicant's final argument states its existing Ward/Rastovich Road facility is "not in the right location to provide good quality cell phone service for the entire target area." While that may be the case, the record does not include any evidence supporting that statement. US Cellular AD -08-5 Page 15 of 29 RR -10 -zoned land within the search ring, and are further described as follows: Alternative Site 1: Located northwest of the subject property at 22143 Rickard Road (Tax Lot 300 on Assessor's Map 18-13-19). Alternative Site 2: Located northeast of the subject property at 22648 Rickard Road (Tax Lot 1101 on Assessor's Map 18-13-17). Alternative Site 3: Located east of the subject property on Tax Lot 600 on Assessor's Map 18- 13-28A (no assigned address.) Alternative Site 4: Located south of the subject property at 59633 Jasper Place (Tax Lot 1200 on Assessor's Map 18-13-32C). Alternative Site 5: Located south of the subject property at 22541 Calgary Drive (Tax Lot 3200 on Assessor's Map 18-13-32B). In addition to these five sites, the applicant's analysis also considered two sites suggested by opponents,12 and described as follows: Alternative Site 6: Located south of the subject property on land zoned F-1.13 BLM Site: Located southeast of the subject property near Ford Road.14 As discussed above, the Hearings Officer has found the applicant was not required to consider sites on federal land because of their status as "resource" lands and because of the significant hurdles an applicant must surmount to obtain federal approval for wireless facilities on such lands. Nevertheless, because the applicant did consider a BLM site, it is included in the discussion of locational factors in the findings below. 4. Locational Factors. As discussed above, this section requires that the applicant demonstrate it must site its proposed wireless communication facility on EFU-zoned land "due to one or more" of seven locational factors. Opponent AMGRN's consulting planner Ted Kreines argued in his July 29, 2008 report that the applicant is required to demonstrate its proposal satisfies all seven 12 In her July 28, 2008 testimony opponent Jane Strell suggested another alternative site on private property at 60865 Biladeau Road owned by Hoisington. The applicant argues, and the Hearings Officer agrees, that it did not need to consider this alternative site because the record indicates it is zoned EFU- TRB. 13 The record indicates this site also may be federal land managed by the USFS. 14 The applicant's July 28, 2008 submission addresses siting the proposed facility on BLM land, and notes that Mr. Helland, representing Sundance Meadows Inc., did not identify a specific alternative facility site on BLM land but rather a general area. Consequently, the applicant identified in its alternative sites analysis a specific site on the BLM parcel that was at the highest elevation, adjacent to an existing road and its associated disturbed ground and vegetation, and further from the nearest dwellings. US Cellular AD -08-5 Page 16 of 29 locational factors. That argument also ignores the plain language of Section 18.16.038 and ORS 215.275 on which the county's provision is based. Accordingly, I find the applicant need only demonstrate that due to one of the six factors its proposed facility must be sited on the EFU- zoned subject property. The applicant's burden of proof states its proposal satisfies three of these factors —1, 2, and 3 — and these are discussed in the findings below. a. Technical and Engineering Feasibility. The applicant's supplemental burden of proof describes its wireless telecommunications network as follows: "The design of a wireless communication network with multiple transmit/receive stations requires the balancing of many dynamic variables including topography, signal strength, antenna wave patterns, transmission location, radio capacity, population density, etc. PPI [pilot pollution interference] is a situation where the volume and strength of signals from a carrier's communication sites within its network received at a given location results in degradation of service to the end user at that location. In the operation of a wireless network, signals from adjacent sites coordinate with each other to transmit/receive calls and transfer calls from one site to the next as a user travels through the area. Signal overlap occurs to facilitate this activity; however, the degree of overlap and signal strength from adjacent sites determines whether these incoming signals are `interference. ' In the operation of a wireless network„ signals from adjacent sites coordinate with each other to transmit/receive calls and transfer calls from one site to the next as a user travels through the area. Signal overlap occurs to facilitate this activity; however, the degree of overlap and signal strength from adjacent sites determines whether these incoming signals are `interference. ' In CDMA systems (the technology platform which the applicant utilizes for its network operation), mobile stations (phones) have the capability to communicate with multiple base stations (antenna/radio sites) whenever the phone is located in the areas covered by overlapping base stations. However, the existence of a large number of strong site signals received at a given phone location is undesirable. This would create PPI and has the influence of overloading the phone 's receiver with an excessive amount of signaling on control channels — it raises the `noise' (interference) level. The ability of a receiver (phone) to handle this noise is limited. This condition erodes the signal dramatically, and the system suffers from dropping of ongoing calls, blocking of originating fresh calls, coverage shortage/gaps and a decrease in system capacity." The applicant's existing network includes facility sites at the Bend Golf and Country Club in southeast Bend and at the intersection of Ward and Rastovich Roads. The applicant's materials explain that cellular signals are broadcast 360 degrees from the tower, resulting in a "honeycomb of circles intersecting as tangents to each other," which when they work together minimize "the quantity of transmitter locations while maximizing the signal coverage achieved." (1) Proposed Site. The applicant's original and supplemental burdens of proof state the proposed US Cellular AD -08-5 Page 17 of 29 facility on the subject property, utilizing a 62 -foot -tall monopine, would provide adequate signal strength and coverage for the targeted geographic area and would provide an opportunity for co - location of another utility's antennas. The applicant also argues its proposed facility would not create overlapping coverage with its other facilities serving southeast Bend which would interfere with these other facilities. As discussed in the findings above, the applicant's RF engineer conducted three "drive tests" showing the areas of deficiency in signal strength and coverage. In addition, the applicant's burdens of proof include maps showing coverage within the targeted geographic area with and without and proposed facility, and depict significantly better coverage with the proposed facility. Opponents argue the applicant's evidence is inadequate to show the technical and engineering feasibility of the proposed facility site. Specifically, AMGRN's July 29, 2008 memorandum states the applicant should have included the following information: "1. The exact proposed height needed and the effect of radiated power to show that the need can be demonstrated. 2. A signal strength analysis study that can be analyzed by a reviewing or peer RF engineer to verify the applicant's claim that the tower is actually needed in the proposed location as compared to other locations that are non -resource lands. [Footnote omitted.] 3. Antennae cut sheets and detail data to support applicant's claim that there is indeed signal interference and a need to minimize interference to other towers in Bend 4. Persuasive data showing that the system needs improvement to remedy the coverage issue. The applicant has stated that cell tower systems do not operate independently and rely upon the entire system and network to be effective. However, the statements are assumptions and not proven facts. A typical RF analysis for this type of use would include the studies and information listed above, albeit highly technical, to provide data proving that there is a need and that the alternative sites cannot be used to provide the operational characteristics necessary to solve the deficiency." The Hearings Officer finds the applicant's evidence does in fact identify the exact height needed and signal coverage for the proposed facility at that height. In addition, the applicant submitted evidence including the results of three "drive tests" documenting coverage gaps using the applicant's existing facilities and network, as well as coverage maps showing gaps in coverage. AMGRN does not explain why such evidence does not fit within one or more of the categories of technical evidence they argued is required. In its August 5, 2008 submittal the applicant responded to AMGRN's arguments as follows: "The Opponents are wrong about what is required for submission. Drive tests, US Cellular AD -08-5 Page 18 of 29 expert testimony and testimony from customers about poor coverage is sufficient to demonstrate a need for the site. Three drive tests have been submitted into the record that test the signal strength in the target area. All drive test data demonstrate that the current coverage is deficient. The record is filled with both written and oral testimony about the need for the site. There is more than substantial evidence that the proposed site would improve service for in -vehicle and in -building coverage. Again, improving the system is a legitimate reason for erection of a cellular tower. See, T -Mobile v. Yamhill County, LUBA No. 1007- 105. It should also be noted that the Opponents have not presented any evidence from an expert stating that the current coverage is adequate for in -vehicle and in - building coverage or that RF studies somehow fall below acceptable standards. "(Underscored emphasis in original.) The Hearings Officer agrees with the applicant's argument and finds the applicant submitted substantial evidence from which I can, and do, find its proposed facility on the subject property would significantly increase signal strength and coverage in the targeted geographic area. I appreciate the challenges facing opponents to wireless communication facilities who may not be able to present evidence from their own RF engineers evaluating and rebutting technical evidence presented by the applicant.15 Nevertheless, the issue before me is whether opponents' lay testimony raises questions or issues that undermine or call into question the conclusions or supporting documentation presented by the applicant's experts. Wal-Mart Stores, Inc. v. City of Bend, 52 Or LUBA 261 (2006). I find opponents' evidence does not rise to that level. (2) Alternative Sites. The applicant's original and supplemental burdens of proof state that in order to achieve the signal strength and coverage in the targeted geographic area equivalent to what would be achieved by the proposed facility, the poles would need to be at the following heights to clear topography, structures and vegetation and broadcast a signal in the targeted area: Site 1: Site 2: Site 3: Site 4: Site 5: Site 6 (F-1 Zone): BLM site: 90 feet; 150 feet; 140 feet; 120 feet; 120 feet; 150 feet; and over 200 feet. As discussed in detail in the findings below, the applicant argued in its original burden of proof that these required tower heights would preclude conditional use approval of these facilities because of the increased visual impacts from such tall towers. However, in its supplemental burden of proof, the applicant also addressed technical and engineering feasibility factors, and in particular the issue of interference — i.e., PPI -- as follows. Alternative Site 1 would be located approximately 2.25 miles from the applicant's existing 15 AMGRN's July 29, 2008 submission notes it hired an RF engineer but that he had to decline the work due to a conflict of interest. US Cellular AD -08-5 Page 19 of 29 Ward/Rastovich Roads site and also is much closer to the Bend urban area. The applicant stated that because of Site 1's proximity to the Bend market, antennas on a 90 -foot tower at this site would "flood the core Bend area with unwanted signal due to both its height and proximity to the market area." The applicant stated that in order to reduce this unwanted signal or PPI, the signal at a Site 1 facility would have to be "throttled back" so much that it "would be essentially useless," and would significantly underutilize the facility representing an unwise investment of the roughly $400,000 required to establish it. With respect to Alternative Sites 2-5, the applicant stated the interference issues would result from both the towers' heights and from their locations at the edge of the intended coverage area. Because of the much greater tower height required to provide equivalent signal strength and coverage from a more remote facility site, the signals would flood the Bend core area with unwanted signals, would actually overshoot some of the much closer targeted coverage area, and would broadcast signals to outlying areas — such as unpopulated private lands as well as BLM and USFS lands — located well outside the targeted service area. The applicant stated "current radio and antenna technology does not offer the applicant alternatives to manage the unwanted signals, other than reducing power to the antennas," which would reduce the signal for the targeted service area. The applicant estimated facilities on these more remote sites would be underutilized by a factor of 40 to 50 percent, therefore significantly reducing the facilities' technical and cost effectiveness. Although the applicant's supplemental burden of proof does not address the alternative sites located on F-1 land BLM land, the Hearings Officer finds from the above-described evidence that given their even more remote locations and higher tower heights they would present similar feasibility issues. For the foregoing reasons, the Hearings Officer finds facilities at Alternative Site 1-5 and the alternative sites on F-1 and BLM land do not constitute reasonable alternatives to the proposed facility on the subject property due to technical and engineering feasibility. In particular, I find that at the tower heights required to provide the signal strength and coverage equivalent to what would be provided at the proposed facility, cellular facilities on these alternative sites would create unacceptable levels of signal interference which could only be corrected by design measures that would significantly underutilize the facilities, resulting in the applicant's inability to provide the public utility service identified as needed in the targeted coverage area to achieve the applicant's service and business objectives. b. Locationally Dependent. This section provides that a utility facility is locationally dependent if it must "cross" EFU-zoned land in order to provide the public utility service or to meet "unique geographical needs." The applicant acknowledges its proposed facility — i.e., monopine, antennas, equipment shelter, etc. — does not "cross" EFU-zoned land, but argues its wireless signals must cross EFU-zoned land including the subject property in order to utilize the applicant's existing network, and therefore this factor is applicable. The Hearings Officer agrees with the applicant's interpretation of this factor and its applicability to its proposal. For the reasons set forth in the findings above concerning technical and engineering feasibility of the proposed facility site and the alternative sites, incorporated by reference herein, the Hearings US Cellular AD -08-5 Page 20 of 29 Officer also finds the applicant's proposed facility is locationally dependent because the applicant's evidence shows the subject property is the location within the search ring from which the applicant's signal strength and coverage area can be improved to the degree required to meet its business and service objectives without causing interference with other components of the applicant's wireless network, or requiring design modifications that would prevent the applicant from fully utilizing the facility and achieving its objectives. c. Lack of Available Urban and Non Resource Land. As discussed above, the applicant's alternative sites analysis considered five RR -10 zoned sites — Alternative Sites 1-5 -- within the search ring. Given that none of the search ring is located within the Bend city limits, the Hearings Officer finds the applicant has demonstrated there is no available "urban" land on which the proposed facility could be sited. The applicant argues none of the RR -10 sites constitutes a reasonable alternative at the required pole and antenna heights for four reasons, each of which is discussed below: (1) The alternative sites would not be feasible from a technical or engineering standpoint. As discussed in detail in the findings above, incorporated by reference herein, the Hearings Officer has found that at the tower heights required to provide the signal strength and coverage equivalent to what would be provided at the proposed facility on the subject property, cellular facilities on Alternative Sites 1-5 would create unacceptable levels of signal interference which could only be corrected by design measures that would significantly underutilize the facilities, resulting in the applicant's inability to provide the public utility service identified as needed in the targeted coverage area to achieve the applicant's service and business objectives. For these same reasons, I find these RR -10 sites are not "available" and therefore are not reasonable alternatives to the proposed facility considering technical and engineering feasibility. (2)The alternative sites could not receive conditional use approval due to the visual impacts from the required pole heights. Opponents argue it is not appropriate to consider conditional use approval criteria in the alternative sites analysis because such criteria are not applicable to the proposed facility on the EFU-zoned subject property, and therefore any analysis of the reasonableness of the alternative sites would not result in a comparison of like sites. The Hearings Officer disagrees. As discussed above, the purpose of the alternative site analysis is to locate non-EFU sites that have the potential to host a facility meeting the applicant's utility service objectives. Therefore, the applicant must demonstrate whether and to what extent its proposed facility can be sited on RR - 10 zoned land within the search ring, and that determination must take into account any applicable siting requirements in the RR -10 Zone. Under Section 18.60.020 "utility facilities necessary to serve the area" are permitted outright in the RR -10 Zone. However, Section 18.60.030 lists "wireless telecommunications facilities" except Tier 1 and Tier 2 facilities as a conditional use in the RR -10 Zone. As noted in the findings above, the definition of "utility facility" under Section 18.04.030 states it "shall not include wireless telecommunications facilities where such facilities are listed as a separate use in a zone." Therefore, the applicant's proposed facility is a "wireless telecommunications facility" US Cellular AD -08-5 Page 21 of 29 in the RR -10 Zone -- a Tier 3 facility -- therefore requiring conditional use approval in the RR - 10 Zone subject to the approval criteria in Section 18.128.340.16 The remaining question is whether it is reasonable to assume, as the applicant does, that conditional use approval would not be granted for wireless communication facilities on Alternative Sites 1-5 due to the visual impacts from the poles ranging from 90 to 150 feet tall. The conditional use approval criteria for wireless telecommunications facilities are set forth in 18.128.340(B) as follows: 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. 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 antennas on existing monopoles in the area to be served. The applicant can demonstrate this by submitting a statement from a qualified engineer that indicates whether the necessary service can or cannot be provided by co - location within the area to be served. 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 and LM Zone is no taller than 30 feet. Towers or monopoles shall not be sited in locations where there is no vegetative, structural or topographic screening available. 5. In all cases, the applicant shall site the facility in a manner to minimize its impact on scenic views and shall site the facility using trees, vegetation, and topography in order to screen it to the maximum extent practicable from view from protected roadways. 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 16 Under Section 18.116.250, Tier square feet in area and towers less listed zoning districts not including Tier 1 or Tier 2 facilities. US Cellular AD -08-5 Page 22 of 29 1 facilities are those that include equipment shelters less than 120 than 45 feet in height. Tier 2 facilities are allowed only in specific the RR -10 Zone. Tier 3 facilities are facilities that do not qualify as 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 structure 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 location on the facility for more than one year the facility shall be removed by the landowner. These approval criteria focus heavily on visual impacts from poles on nearby residences and LM corridor roads. They require the applicant to site poles where there is at least some vegetative, topographical or structural screening available, to use any existing features to screen the pole "to the maximum extent practicable," and to conduct an alternative sites analysis for "less [visually] intrusive" sites. The Hearings Officer finds this latter requirement likely would prevent conditional use approval of Alternative Sites 2-5 because at 120 to 150 feet tall the towers on those sites would be more visually intrusive than the 90 -foot -tall tower proposed at Alternative Site 1. With regard to Alternative Site 1, the aerial photograph included in Hearing Exhibit 1 (June 3, 2008) shows there is some existing vegetation on this parcel along with some land that does not appear to be irrigated, and therefore this site would not be eliminated as a potential alternative under Section 18.128.340(B)(1) or (4). In addition, Rickard Road on which this site is located is not a designated LM corridor that would limit the pole height to 30 feet under Section 18.128.340(B)(4). The Hearings Officer finds none of the other conditional use approval criteria would appear to foreclose approval of Alternative Site 1 for a facility with a 90 -foot -tall tower. For the foregoing reasons, the Hearings Officer concurs with the applicant that it is very unlikely wireless communication facilities on Alternative Sites 2-5 with towers at the required heights could receive conditional use approval under Section 18.128.340. I cannot make such a finding with regard to Alternative Site 1. However, as discussed above, I have found Site 1 is not a "reasonable alternative" to the proposed site on the subject property considering technical and engineering feasibility. (3) The alternative sites cannot be leased. The applicant's burden of proof and supplemental materials state none of the owners of Alternative Sites 1-5 was willing to allow the siting of the applicant's proposed facility on their US Cellular AD -08-5 Page 23 of 29 parcel and therefore they are not "available." Opponents respond that in determining availability the Hearings Officer must find the applicant made a good faith effort to obtain the property owners' approval. They assert the applicant did not do so because at the time the applicant's representative Dan MacKinney contacted the owners of Alternative Sites 1-5 the applicant already had executed a lease with the owners of the subject property, and therefore did not seriously pursue leasing another site.17 In addition, they assert Mr. MacKinney did not tell the owners of Sites 1-5 — Dew, Fields, Surridge Owners Association, Doolan, and Hardie, respectively -- that they would be paid for any facility lease or what that payment would be. In its supplemental burden of proof, the applicant stated Dan MacKinney spoke with the owners of each of these parcels between April 3 and 9, 2008, and that none of them was interested in leasing a site on their property for a wireless communication facility. At the continued public hearing on July 22, 2008, Mr. MacKinney testified that the owner of the each of the five alternative sites was aware he/she would be compensated for any wireless facility lease. In response, opponent Jane Strell stated in written and oral testimony that based on her conversations with some of these property owners she believed they had not been aware of lease opportunities or terms, and that at least one owner — Mr. Dew — was in fact willing to lease a site on his property (Alternative Site 1). However, only one of these property owners — Mr. Dew -- submitted oral or written testimony concerning their conversations and lease negotiations with the applicant. And the affidavit of Mr. Dew submitted by Ms. Strell with her July 28, 2008 letter, does not state Mr. Dew does agree or would have agreed to lease a site on his property to the applicant. Neither LUBA nor the appellate courts have found a "good faith" requirement in determining site availability under ORS 215.275 or local implementing regulations.18 A similar issue was raised in Sprint PCS v. Washington County, cited above. Opponents in that case argued the process used to identify alternative sites was flawed because the applicant treated a non -response to its queries about possible lease sites for a wireless communication facility as a refusal, and because no lease terms offered to prospective landlords were revealed to opponents or to the county. The county hearings officer's decision found the applicant should be required to disclose the lease terms discussed with property owners with whom it negotiated. However, because it was not clear to LUBA whether the hearings officer's denial of the proposed wireless communication facility was based on the applicant's failure to disclose the lease terms, LUBA did not address whether such disclosure was in fact required under ORS 215.275. This issue also was not addressed by the Court of Appeals. Assuming for purposes of discussion that "good faith" lease or purchase negotiating is a requirement for establishing that alternative sites are not "available" under Section 18.16.038 and ORS 215.275, the Hearings Officer finds the evidence in this record simply is not sufficient to show a lack of good faith on the part of the applicant. As the opposition to the applicant's proposal amply demonstrates, cellular telephone towers are not viewed favorably by the vast 17 The record includes a redacted copy of the applicant's lease with Mr. and Mrs. Gonzalez that is dated January 25, 2008. 18 As set forth above, Section 18.128.340(B)(2) includes a "good faith" requirement for considering antenna co -location opportunities for wireless telecommunications facilities in the zones where they are conditional uses. US Cellular AD -08-5 Page 24 of 29 majority of landowners. There is no evidence in this record from which I can find that the owners of Sites 1-5 would have agreed to lease their parcels for the applicant's proposed facility had they been offered monetary incentives. And where, as here, the record indicates the five alternative sites were inferior to the subject property from the standpoint of technical and engineering feasibility, it is understandable that the applicant might not pursue leases on these sites with the same vigor with which it negotiated with the owners of the subject property. For the foregoing reasons, the Hearings Officer finds the applicant has demonstrated Alternative Sites 1-5 were not available for lease for the proposed facility. (4) Cost Considerations. The applicant argues siting its proposed facility on Alternative Sites 1-5 would be considerably more expensive than siting a facility at the subject property, considering both the additional cost for the taller monopines required to achieve the desired signal strength and coverage and the inability to use the sites to their fullest potential. As discussed above, the applicant estimates the cost to establish the proposed wireless facility with a monopine would be $400,000, but that this cost would increase by amounts ranging from $34,000 to $105,000 with an increase in the height of the monopine. Opponents argue there would not be significant cost differentials between the proposed facility and the alternative sites if those sites were developed with monopoles instead of monopines. They also point out that on the subject property and most if not all of the alternative sites, juniper is the dominant tree species. Therefore, opponents argue that using a monopine may not be necessary to achieve the aesthetic results the applicant intends. The applicant acknowledged that monopoles are less expensive than monopines, such that a 90 -foot -tall monopole at Alternative Site 1 would cost roughly the same as a 60 -foot -tall monopine at the subject property. The applicant responded it should be allowed to compare like facilities in the alternative sites analysis, and that in any case monopines would be more suitable at the alternative sites because there are ponderosa pines in the area surrounding the subject property. The Hearings Officer observed during my site visit that there are some mature ponderosa pines in the surrounding area along with mature junipers, but that there are many parts of the surrounding area that have few trees. Nevertheless, I tend to agree with opponents that given the considerable variation in vegetative cover and tree species in the search ring, it is by no means certain that a monopine would have less visual impact than a monopole. In light of these considerations, the Hearings Officer finds that at least with respect to Alternative Site 1 which would require a 90 -foot -tall pole, cost is not a critical factor in determining whether the site is a reasonable alternative. However, as discussed in the findings above, I have found a facility on Alternative Site 1 is not a reasonable alternative to a facility on the subject property considering technical and engineering feasibility. For the foregoing reasons, the Hearings Officer finds the applicant conducted an adequate and appropriate alternative sites analysis, and based on that analysis there are no "reasonable alternatives" to siting the proposed facility on the EFU-zoned subject property. US Cellular AD -08-5 Page 25 of 29 8. The owner of a utility facility approved under this section shall be responsible for restoring, as nearly as possible, to its former condition any agricultural land and associated improvements that are damaged or otherwise disturbed by the siting, maintenance, repair or reconstruction of the facility. Nothing in this subsection shall prevent the owner of the utility facility from requiring a bond or other security from a contractor or otherwise imposing on a contractor the responsibility for restoration. FINDINGS: Opponent AMGRN argues the Hearings Officer cannot adequately analyze this criterion without evidence from the applicant documenting "the full range of potential impacts to the agricultural land disturbed by the cell tower and its road/support facility." The Hearings Officer disagrees. As discussed in the Findings of Fact above, the record indicates the subject property is not engaged in farm use and is not receiving farm tax deferral. And in any event, I find compliance with this section can be assured through imposition of a condition of approval requiring the applicant to restore the leased area on the subject property, as nearly as possible, to its former condition if it is damaged or otherwise disturbed during the siting of the wireless communications facility. I find the applicant also will be required as a condition of approval to satisfy all of Arnold Irrigation District's requirements concerning its irrigation lateral canal located on the subject property. 9. In addition to the provisions of 1-6 above, the establishment or extension of a sewer system as defined by OAR 660-011- 0060(1)(f) in an exclusive farm use zone shall be subject to the provisions of OAR 660-011-0060. 10. The provisions above do not apply to interstate gas pipelines and associated facilities authorized by and subject to regulation by the Federal Energy Regulatory Commission. FINDINGS: The Hearings Officer finds this criterion is not applicable to the applicant's proposal to establish a wireless telecommunications facility on the subject property. c. Section 18.16.060, Dimensional Standards * * * D. Each lot shall have a minimum street frontage of 50 feet. E. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDINGS: The record indicates the subject property's entire southern boundary abuts Arnold Market Road and exceeds 50 feet in length. The Hearings Officer finds that in light of Brentmar and the county's previous cell tower decisions, cited above, this section does not preclude the US Cellular AD -08-5 Page 26 of 29 siting of structures over 30 feet in height in the EFU Zone if such structures constitute a "utility facility" under 200 feet tall permitted in the EFU Zones under Sections 18.16.025 and 18.16.038 as well as ORS 215.283 and 215.275. d. Section 18.16.070, Yards FINDINGS: This section requires minimum setbacks of 40 feet from a local road, 60 feet from a collector road, 100 feet from an arterial road, and 25 feet from side and rear property lines. The record indicates Arnold Market Road is a designated rural collector road, and therefore the proposed wireless communication facility including the monopine, equipment shelter, back-up generator and propane tank, and perimeter fence must be set back at least 60 feet from Arnold Market Road, as well as at least 25 feet from the front and rear yards. The applicant's submitted plot plan shows all components of the proposed facility would be located approximately 1,946 feet from Arnold Market Road and the front yard line, and approximately 693 feet from the rear yard line, as well as approximately 77 feet from the east property line and approximately 1,243 feet from the west property line, therefore satisfying this criterion. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby APPROVES the applicant's requested administrative determination to establish a wireless communication facility on the subject property, SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL: 1. This approval is based on the applicant's original and supplemental burdens of proof and attachments and exhibits, the applicant's submitted site plan dated January 4, 2008 and consisting of four sheets (A-1, A-2, C-1 and T-1), the applicant's submitted site survey dated February 20, 2008, and the applicant's written and oral testimony. Any substantial change to the approved use will require a new land use application and approval. 2. The facility approved by this decision consists of the following components located within the "lease area" identified on the applicant's submitted site survey: a. a 62 -foot -tall monopine on a concrete foundation; b. side -mounted wireless telecommunication antennas mounted at the 42 and 57 -foot levels on the monopine; c. a 12' by 20', 2,400 -square -foot prefabricated concrete equipment shelter with a brown exterior finish; d. a back-up power generator and propane tank; e. a 6 -foot -tall chain link security fence surrounding the entire leased area on the subject property with access control through a locked gate; and US Cellular AD -08-5 Page 27 of 29 f. a gravel -surfaced vehicle parking area within the perimeter fence. The facility approved by this decision also includes an access drive outside the "lease area" identified on the applicant's submitted site survey, consisting of existing dirt roads on the subject property that extend from the dwelling's driveway to the lease area and on which the applicant will place gravel. PRIOR TO OBTAINING A BUILDING PERMIT FOR THE APPROVED FACILITY: 3. The applicant/owner shall obtain from the Deschutes County Community Development Department any required access permit for access from Arnold Market Road. 4. The applicant/owner shall construct the access driveway to the approved facility in accordance with the minimum standards for fire apparatus access roads as identified by the Bend Fire Department, and shall submit to the Planning Division written documentation from the fire department that the access driveway has been constructed to these standards. 5. The applicant/owner shall comply with all requirements of the Arnold Irrigation District concerning its irrigation facilities on the subject property. PRIOR TO COMMENCING CONSTRUCTION AND/OR INSTALLATION OF THE APPROVED FACILITY: 6. The applicant/owner shall obtain any and all required building permit(s) from the Deschutes County Building Safety Division. 7. The applicant/owner shall obtain any and all required licenses and permits for the approved facility from the Federal Communications Commission. AT ALL TIMES/FOLLOWING CONSTRUCTION OF APPROVED FACILITY: 8. The applicant/owner shall restore the leased area on the subject property, as nearly as possible, to its former condition if it is damaged or otherwise disturbed during the siting of the approved facility. DURATION OF APPROVAL: 9. The applicant/owner shall submit an application for building permit(s) for the approved facility, and/or construct the approved facility if no building permits are required, within two (2) years following the date this decision becomes final or obtain an extension of time pursuant to Section 22.36.010 of the Deschutes County Code, or this approval shall be void. Dated this c qday of August, 2008. US Cellular AD -08-5 Page 28 of 29 Mailed this r,L day of August, 2008. Karen H. Green, Hearings Officer THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED. US Cellular AD -08-5 Page 29 of 29