BOARD OF COMMISSIONERS
REGULAR MEETING
February 2, 2005
1:30 p.m.
Commissioners'
Conference Room
APPROVED 3/9/05
Commissioner Anna Morrison presided with Commissioners
Bobby Green, Peter Sorenson and Faye Stewart present. Bill Dwyer was excused. Assistant County Counsel Stephen Vorhes
and Recording Secretary Melissa Zimmer were also present.
15. PUBLIC HEARINGS
a. THIRD READING AND PUBLIC HEARING/Ordinance No. 17-04/In the
Matter of Amending Chapter 16 of Lane Code to Revise the Applicable Standards
for Telecommunication Facilities (LC 16.264). (NBA & PM 10/20/04 &
11/3/04).
Steve Hopkins, Land Management, reported at the hearing of November 3,
2004 there were three issues identified that the Board wanted to resolve
regarding the Telecommunication Ordinance.
He noted those issues were separation, change out and peer review. He contacted the people who gave testimony
at the hearing and that group met on December 6. Consensus was reached on the separation and change out but not on
the peer review. He noted that, as
written, the ordinance requires an Oregon professional engineer to certify the
radiation standards that the tower is structurally sufficient to support the
co-location equipment. He said the
proposal by Ms. Lindstromberg was to amend the requirement to have the County
hire (at the applicant’s expense) a third party engineer to verify those
statements and to review the application for accuracy. He added the proposal requires a third party
review for every application. He noted
the group remains at an impasse regarding that issue, but Ms. Lindstromberg
stated at a meeting on December 6 that the 1200-foot separation requirement
would alleviate her concern regarding peer review.
Hopkins indicated that Measure 37 was a reality and they need to
address that. He stated because the
proposed ordinance does not implement the state statute or Administrative
Rule. All claims against the ordinance
would come to Lane County. He said
since the ordinance as revised by the group is generally less restrictive than
the current telecommunication provisions in the Lane Code. He commented that the likelihood of a claim
is low.
Hopkins explained the current code does not allow any reductions in the
separation between cell towers and houses and this ordinance does. He said the code only allows directional or
parabolic antennae and the ordinance does contain the limitation, it is written
to encourage new technology that is less intrusive. He noted the Lane Code requires a land use application for any
change to a co-location or to a cell tower.
He said the ordinance has a new policy called the change out that allows
some alterations without a land use application. He indicated that page 4 of the cover memo contains a list of all
the new regulations and discusses their restrictiveness compared to Lane Code.
Hopkins explained the Board has three options: to incorporate the
recommendations of the group, adopt the original ordinance without any changes
or choose not to adopt the ordinance.
He said staff is recommending incorporating the recommendations of the
group and adopting this ordinance in two weeks. He added if the Board chooses to make further revisions, they
could adopt the ordinance and revise it later or they could not adopt the
ordinance and begin the provision process.
He noted that would take a delay of up to a year. He added it would be a
more expensive option since it would mean a longer process. He noted that process doesn’t allow any time
for implementation to reveal the unexpected issues.
Vorhes’ recommendation is to move to the next reading to include the
changes in the ordinance and set a fourth reading for two weeks for
deliberation and action on the ordinance.
Commissioner Morrison opened up the Public Hearing.
Mona Lindstromberg,
Veneta, stated she was not e-mailed about the date of this hearing. She said in January she contacted Steve
Hopkins and he didn’t know when the meeting was to take place. She noted on page 4 of the packet, Hopkins
stated that Mr. Fowler of Singular AT & T, Martha Johnson, Heather Kent and
herself, endorsed the revisions of the ordinance. She said he must have meant the revisions to the revised
ordinance, not the revisions to the existing ordinance. She noted Hopkins used the words endorsed
at the December meeting and was corrected by everyone there. She said at that time they hadn’t seen a
draft copy of his recommendations before they were submitted to the Board. She indicated some recommendations they
compromised on and others she didn’t know where they originated. She made the statement if there were a
1200-foot separation of towers from homes and schools, she wouldn’t be that
concerned with independent technical revenue. She thought there was a watered
down version that is discretion of peer review in the existing ordinance. She said after reading the independent
technical review of Voice Stream’s Eugene application, she realized that
technical review must be mandatory as it is in the Eugene code. She noted since the purpose of the Lane County
Code is to encourage co-location and minimize visual impact, she thought the
Voice Stream’s review illustrates that the information provided by Voice Stream
is misleading. She asked the Board to
consider her recommendations for consideration in the deliberations and to
re-write Lane Code to include required independent technical review at the
expense of the applicant. She commented
they hadn’t had an adequate discussion of the revised ordinance.
Nina Lovinger, Fall
Creek, stated the City of Eugene requires independent technical review of a
telecommunications application. She
said the city selects and pays a technical review firm from funds collected
from the applicant. She said the
application materials submitted are not consistent. She stated the applicant’s written statement notes that the
telecomm facility is needed for coverage but an exhibit that was provided said
the issue is not for coverage but capacity for service needs. She added that
the applicant had not provided documentation of the minimum height necessary
for providing their capacity needs.
She said it is critical in determining if there is co-location. She said the review goes on to say that the
applicant has not provided information required by using the code to document
the reason for the location, design and height of the proposed towers. She said
besides finding the technical information on propagation to be inaccurate and
incomplete, the review also notes that the photo simulation provided by the
applicant is not accurate. She said in
reviewing many such applications, their group has done balloon floats that will
illustrate what will be seen from properties in the vicinity. She said they found that photo simulations
provided by the applicants do not tell the whole story. She asked the Board to incorporate a
meaningful provision into the telecommunication ordinance to ensure residents
have the facts and County staff could make informed decisions. She said it needs to be mandatory.
Ron Fowler,
Beaverton, represented Singular Wireless.
He commented the changes are commendable to the ordinance and they
support them, he didn’t think they addressed the main issues that are the major
roadblocks in the code. He thought the
code discriminates against the wireless industry and singles it out for certain
enforcement action where they are not equal on other types of uses. He said there is no foundation or
explanation as to why some of the code provisions are in the ordinance. He said it explains they would have to have
a cell phone tower leased before they could apply for a land use permit. He said it would make it impossible to
locate a tower in Lane County. He
stated it brings up an anti-trust concern where carriers cannot go out and
actively solicit other carriers to go on their location. He noted carriers couldn’t get involved; it
would have to be given over to a third party.
He added it might violate the Telecommunications Act. He asked if these restrictions were put on
any other type of use in the County. He
didn’t know why telecommunication was singled out. He thought that might be an FCC issue. He commented that the co-location provision was awkward, that it
would be easier to build a new tower and it takes away incentive to co-locate
because the process is almost identical.
Heather Kent, Veneta
said she hadn’t received an e-mail regarding today’s hearing. She didn’t endorse what Hopkins proposed on
the current revision to the ordinance because she hadn’t seen it. She didn’t think the proposed changes accomplished the task of clarifying and
improving the ordinance and she didn’t think it should be passed. She commented that the setbacks in the
ordinance are not clear. She thought
the purpose section needed to indicate the reasoning for the setback
requirement. She noted there is no FCC
monitoring of the emissions of telecommunications facilities but there is a
standard. She asked the Board to review
the issues noted in an independent review that was provided to the City of
Eugene.
There being no one else signed up to speak, Commissioner Morrison
closed the Public Hearing.
Green asked if the group endorsed what was in front of the Board or if
they endorsed something different.
Hopkins responded that they didn’t endorse the whole ordinance. He said they liked the revisions they
discussed at the meeting. He said they
addressed three issues and came to consensus on two of them. He noted that peer group is not what they
agreed upon. He added they wanted to
make other changes.
Vorhes noted the revisions in front of the Board address the change
outs, setbacks and there isn’t a change as it relates to peer review other than
what was originally proposed, to take out discretionary authority of the
planning director to require a peer review.
Green asked if the standards they have meet the intent of the
Telecommunications Act or if they exceed them.
Vorhes explained that the 1200-foot setback is in the current ordinance
and that was not challenged and it was adopted. His assessment when they originally adopted the ordinance was
that that was reasonable, but what is now in front of the Board, (if they
include the revisions) is that 1200 foot setback is proposed to be changed to
be an absolute, not a larger setback, depending on circumstances. He commented the proposed revisions that are
coming, make it less unreasonable. He
didn’t think there was an unreasonableness to the current code.
Green wanted a comparison with Washington, Clackamas and Marion
Counties on how Lane County’s Telecommunications Act compared.
Green wasn’t supportive of requiring a peer review. He supported the change out and separation
piece.
MOTION: to move to approve a Third Reading and
Setting a Fourth Reading and Deliberation on Ordinance No. 17-04 for
February 16, 2005.
Green MOVED, Faye SECONDED.
VOTE: 4-0.
Morrison requested when they return with the comparison with the other
counties, she receive a copy of the e-mail that was sent out announcing today’s
meeting.
16.
COMMISSIONERS' ANNOUNCEMENTS
Morrison
noted the Board received assignments for AOC committees and the next
legislative meeting will be February 14 in Salem at 10:00 a.m. She announced the federal legislation on
Secure Rural Schools will be dropped at noon in Washington, D.C., and reported they are encouraged to contact
their congressional representatives.
Green
said the Board should do outreach and meetings off-site in the rural areas.
17. CORRESPONDENCE
TO THE BOARD
None.
18.
OTHER BUSINESS
None.
There being no further business, Commissioner
Morrison adjourned the meeting at 2:20 p.m.
Melissa Zimmer
Recording Secretary