BOARD OF COMMISSIONERS
February 2, 2005
Commissioners' Conference Room
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 applicantís 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 doesnít allow any time for implementation to reveal the unexpected issues.
Vorhesí 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 didnít 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 hadnít seen a draft copy of his recommendations before they were submitted to the Board.† She indicated some recommendations they compromised on and others she didnít know where they originated.† She made the statement if there were a 1200-foot separation of towers from homes and schools, she wouldnít 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 Streamís 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 Streamís 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 hadnít 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 applicantís 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 didnít 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 couldnít 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 didnít 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 hadnít received an e-mail regarding todayís hearing.† She didnít endorse what Hopkins proposed on the current revision to the ordinance because she hadnít seen it.† She didnít think the proposed changes† accomplished the task of clarifying and improving the ordinance and she didnít 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 didnít 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 isnít 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 didnít think there was an unreasonableness to the current code.
Green wanted a comparison with Washington, Clackamas and Marion Counties on how Lane Countyís Telecommunications Act compared.
Green wasnít 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.
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 todayís 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
18. OTHER BUSINESS
There being no further business, Commissioner Morrison adjourned the meeting at 2:20 p.m.