JOINT BOARD OF COMMISSIONERS/
LANE COUNTY PLANNING COMMISSION
April 10, 2002
Harris Hall Main Floor
1. SECOND READING AND PUBLIC HEARING/Ordinance No. 4-02/In the Matter of Amending Chapters 10 and 16 of Lane Code to Revise and Add Telecommunication Facility Siting and Removal Regulations, and Declaring an Emergency.
Commissioner Bill Dwyer presided with Commissioners Bobby Green, Sr., Anna Morrison and Peter Sorenson present. Cindy Weeldreyer was present via telephone. Assistant County Counsel Stephen Vorhes and Recording Secretary Melissa Zimmer were also present.
Planning Commissioners: Jacque Betz, Don Clarke, Marion Esty Juanita Kirkham and Heidi Pollock
Kent Howe, Land Management, explained that the Board appointed a task force with Commissioners Dwyer and Green and Planning Commissioners Esty and Martorello and Assistant County Counsel Stephen Vorhes. Howe noted the he staffed the meetings. He stated they were to develop an ordinance within 60 days, utilizing ordinances that were available in other jurisdictions and glean from them ordinance language that Lane County could find applicable. He said the task force met three times during June and July and reviewed the county ordinances of Multnomah, Clatsop, Lincoln, Polk and Deschutes and the city ordinances from Eugene, Springfield and Gresham. He stated the task force culminated its work after the three meetings and the Board requested that it go through the public process with the Lane County Planning Commission. He noted a work session was scheduled with the Planning Commission on August 7 and a public hearing was scheduled with the Lane Planning Commission on November 6. He said they started their deliberations on December 18 and were completed on February 5. He said the Lane County Planning Commission recommended having a joint meeting with the Board of Commissioners, as their recommendation represented a compromise from the Planning Commission that there wasn’t a clear consensus on the document. It was suggested that if they had an opportunity to deliberate with the Commissioners, they could convey some of the issues they were struggling with.
Howe explained the packet contained the minutes of the task force and the Lane County Planning Commission hearings and deliberations. He said they sent out a Ballot Measure 56 notice (approximately 50,000) to all of the rural property owners, residents living outside the city limits of the small cities and outside the urban growth boundary of Eugene and Springfield. He added they submitted a 45-day notice to LCDC and they met the Lane Code notice requirement in the Register Guard. He said they conducted two public information sessions last week to accommodate the people who couldn’t make it during work hours. He noted 60 people attended the public information sessions. He said he answered 75 telephone calls that resulted from the Measure 56 notice.
Howe stated that Lane Code currently deals with towers differently in each zone. He said they are dealing with an ordinance that treats these types of facilities in a combination of different descriptions of the use for processing an application. He noted that some of the criteria wouldn’t significantly increase the cost on adjacent farm or forestland or change the practices of others, dealing with the capability and livability of adjacent properties. He said this was to consolidate the process and to make the standards that are applicable consistent no matter what zone they dealt with. He said it was also to update the ordinance to deal with wireless facilities into the 21st century as opposed to standards that were dealing with radio and television towers of the past.
Howe noted the task force looked at a number of issues from the other ordinances that they thought would be carried over onto the proposal. He said they wanted the application to include both the licensed carrier and the landowner. He said it could result in unnecessary towers going up if they don’t have a provider that would not be providing the service. He said another provision is a notice of a neighborhood meeting that would be required prior to making an application with the County so the neighborhood knows what is being proposed. He noted that once a facility is abandoned for more than a year, the landowner shall remove it and they are ensuring that process with a bond requirement.
Howe said that co-location towers are critical as the ordinance has an incentive built into it with less process. He said they want fewer towers with co-location. He said the main component of the ordinance that is not in the current code is in consideration of other sites in the service area that would have less visual impact as viewed from nearby residences. He added that a component of the ordinance is 1,000 feet from nearby residents and at least as far away from adjacent residents as the tower would be on the landowner’s property from their dwelling. He noted the height limitation is 200 feet and minimum setback from the property boundary equal to the height of the tower.
Howe noted that the Telecommunications Act of 1996 pre-empts local regulations that would unreasonably prohibit or have the affect of prohibiting the provision of personal wireless services. He said that local governments might not regulate facilities on the basis of the environmental effects of radio frequency emissions to the extent that those faculties comply with FCC regulations concerning emissions.
Howe stated that since the packet was delivered, he submitted a supplemental memo with a letter from Mainstay Consulting and a letter from a Kenneth Rogers. He added he received other items: a letter from Andrew Weber and items from Mona Linstromberg that included an analysis on the draft proposal.
Sorenson suggested not placing towers near facilities like emergency rooms, schools, and fire stations.
Green asked if this ordinance was exclusive to cell towers.
Howe responded it is for telecommunication facilities. In the definition section, it defines telecommunication facilities as those designed and used for the purpose of transmitting, receiving and relaying voice and data signals from antennae towers and ancillary facilities. Transmission for television and radio signals are not telecommunication facilities.
Green asked prior to this ordinance what the volume of applications was.
Howe stated that over the last year they processed 12 applications for cell towers and they currently have three applications pending.
Robert Emmons, 40093 Little Fall Creek Road, Fall Creek, asked the Board not to dismiss the issue of environmental effects. He noted that local jurisdictions across the country have ordinances in place that establish meaningful setbacks from homes and schools and this ordinance is a start. He added that homes could lose property values. He said the FCC Act of 1996 does not allow state and local jurisdictions to regulate placement of communication facilities based on health effects of radio frequency emissions. He stated that exposure to low intensity, non-thermal, non-iodizing radiation is a concern. He said they need an ordinance that would not only ensure adequate cellular telephone coverage for Lane County, but would also ensure that its residents are protected in the best manner possible. He said Lane County needs a comprehensive plan.
Lisa Arkin, 29136 Gimple Hill, Eugene, (participated in a power point presentation) noted the FCC Act of 1996 took away the rights of local governments to use health concerns as a criteria in locating cell phone towers. She said it is the strongest concern for the community. She hoped the Board would take a cautionary approach to siting cell phone towers.
Heather Kent, 24214 Suttle Road, Veneta, (participated in a power point presentation) stated that some of the adverse health effects at the lower intensity of exposure are memory loss, sleep disorders, slow motor skills, headaches and changes in the brains’ electrical activity and DNA damage. She said it was important that the radiation emissions from a tower do not radiate evenly. She said they shouldn’t be putting a tower near children or a school.
Nina Lovenger, 40093 Little Fall Creek Road, Fall Creek, (participated in a power point presentation) said visual impact, property devaluation and incompatibility with the neighborhood have economic implications. She said as a resident of rural Lane County, a transmission tower is not only a visual blight, it affects country living. She noted one of the easiest and cost efficient methods to determine the visual impact of a proposed tower is through the use of a balloon test. She said a balloon is floated from the proposed site to the height of the proposed tower. She said it should be stipulated that this be done as part of the application process. She added an independent party could do it routinely and the cost could be incorporated into the fee process. She said not agreeing to a balloon float should be grounds for denial if visual impact and compatibility with neighboring properties are at issue.
Martha Johnson, 110 E. Hilyard Lane, Eugene, (participated in a power point presentation) stated cell phone towers are a cause of property devaluation for nearby residences. She said it had been confirmed by lower tax assessments in other parts of the country. She noted that there are approximately 230 homes on River Road located by a proposed cell phone tower. She stated at a 15% loss, it was equal to at least $23,000 for each home or a neighborhood total of approximately $700,000. She said Lane County needs mind potential liability when approving developments that are likely to result in loss of property value for an entire neighborhood. She noted a possibility of legal action against the City of Eugene was mentioned in a public hearing by neighbors concerns about the impact on their property values of a proposed tower. She said that setbacks of 1,200 feet had been adopted by local governments in other states with the stated purpose of preserving property values for nearby homes. She noted a shortcoming of the proposed ordinance is the provision regarding setbacks from nearby residences. She urged the Board to adopt the ordinance with a 1,200-foot minimum setback from residences.
Clarke said it was his understanding that in drafting Section E regarding setbacks, that it was at least 1,000 feet; or if the landowner had put the cell tower 2,000 from his house, then that would become the center. He added the minimum was 1,000 feet.
Barry Locklear, 2261 N. 5th Street, Springfield, (participated in a power point demonstration) said cell phone towers near schools invite trespassers. He noted it is an accident waiting to happen due to adventuresome youth. He said no one is monitoring cell phone towers, including the FCC. He added it was possible that after multiple sitings on the various antennas, a facility could be out of compliance. He said these facilities should not be built where youth congregate.
Craig Halverson, 87140 Territorial, Veneta (participated in a power point demonstration) stated very few people are qualified to address the technical nature of the telecommunications field. He said the effective radiated power from one antenna site is over 1,800 watts. He said it was unrealistic to think the County could perform a technical site review. He suggested having Lane County and other jurisdictions sharing the cost of having an independent communications engineer substantiate technical claims made by the applicants. He noted just because the applicant makes a statement, doesn’t mean that it is true. He added the costs could be borne by the applicant.
Anna Sontag, 1192 Arcadia Dr., Eugene, (participated in a power point demonstration) said citizens need to be assured that the infrastructure being put into place is necessary and not speculative in nature. She said the proposed ordinance was a good start. She noted to effectively determine where cell phone towers should be placed, the County needs to know where they are already located. She said the information needed to map Lane County is available, but not in a useful form to the County. She noted their group was seeking a grant to do mapping. She added once the area has been mapped, the County could be proactive in determining where the facilities should best be sited to minimize their impacts on neighboring properties. She urged the Board to accept the proposal, with a setback of 1,200 feet from homes and schools. She noted that many cities had done this. She stated they submitted the ordinance from Warren, Connecticut and Blake Leavitt’s book explaining the ordinance from Great Barrington, Massachusetts. She requested the Board approve the ordinance with an emergency clause to expedite its implementation.
Sorenson asked how the planning director would be able to tell whether or not a proposed cell phone tower was or could be co-located if there was no inventory.
Howe responded without the inventory, the applicant would have to provide within ten miles, all of the facilities that currently exist. He said there could be an FCC inventory.
Sorenson asked if changing the setback from 1,000 to 1,200 would cause the ordinance to be re-read and re-noticed; or if they could make the change as a minor amendment to the proposal.
Vorhes stated that only changing the distance to 1,200 might be interpreted as not a substantial change. He noted that part of the suggestion is 1,200 not only from residences, but also from schools. That would make it a substantial change.
Donna Murray, 87140 Territorial Road, (participated in a power point presentation) hoped the revisions would be minor so there wouldn’t be a re-noticing procedure. She added the revisions might be necessary in the future, as other jurisdictions had discovered. She suggested the wording in 5 (e) should be “and” instead of or. She said the issues of compliance hadn’t been dealt with. She noted according to the ordinance, the tower companies and service providers had been given a general instruction to submit documentation that the facility had complied with FCC standards. She noted there was no provision for monitoring by an independent party. She added the applicant could pay for yearly fees and it had been done by other jurisdictions around the country. She submitted an article about monitoring and what local zoning boards could do without violating Section 704. She added the setback of 1,000 feet is necessary and it should be higher.
Mary Ann Holser, 2620 Cresta De Ruta, Eugene, said if Lane County doesn’t exert control locally, there would be a forest of cell phone towers in the Willamette Valley. She asked the Board to consider the effect on the entire county. She asked the Board to use the precautionary principle. She said preventive action should be taken. She said the burden should be shifted from the County to those who propose the activity. She said a wide range of alternatives should be explored. She added that public participation needed to be increased in decision-making. She said it was ridiculous for congress to forbid them from considering health issues in the decision-making. She noted Section 704 as written, limits standards and considerations. She added that limiting considerations of any kind in a discussion is not a good idea.
Craig Shelby, 33389 Bloomberg Road, Eugene, stated this was a land use issue that was pertinent to everyone. He added it affects the livability of the neighborhood. He encouraged the Board to accept the ordinance with a few minor changes. He wanted to see clearer language on the setbacks including language that addresses schools. He also supported Sorenson’s suggestion of including public safety facilities.
Evan Arkin, 29136 Gimple Hill Road, stated he lives in the country. He didn’t want a cell phone tower near where he slept, played and lived.
Joseph Schneitsky, 1025 Taylor Street, Eugene, suggested the Board review the ordinance as well as the Planning Commission. He suggested they have a siting of a minimal distance from a well. He noted there was a tremendous amount of concrete that goes under a cell tower. He noted the cement leaches into the soil. He said some cell phone towers have 30 feet of concrete underneath them. He said it was a prudent thing to look into.
Mona Linstromberg, stated that people were assuming there was a 1,000-foot setback from residents, but that was not the case in the ordinance. She said if a person wants to have a cell phone tower built on their home 200 feet away from their home, it has to be at least 200 feet away from their neighbors. She said that is what the provision was saying.
Howe responded the intent that it is at least 1,000 feet wasn’t meant to supersede “that at least” requirement. He said the “or” is meant to add some additional provision dealing with siting at least as far away from an adjacent residence as it is on the subject property. He noted the “at least” language is mandatory.
Dwyer noted they could put the intent into the ordinance.
Curt Mitchell, 2400 Charnelton, Eugene, stated he owns rural property. He was concerned that there is not a clear FCC maximum for radio frequency. He wanted to know the maximum and the monitoring of the levels. He said in the future it would be important to add this. He said there should be independent experts who would monitor this periodically. He encouraged the Board to go along with a setback from schools or churches, where there are large numbers of people that could be exposed in a certain area.
Kyra Carol, 2285 E. 29th, Eugene, said she would be submitting information that illustrates the need for independent technical review. She noted the first part dealt with noise of the towers and that wasn’t something that they dealt with. She said under the statute, the applicants are required to file with the DEQ, and the City of Eugene did not address that fact. She wanted Lane County to make sure the towers were not exceeding FCC standards and include costs for that in their proposal so it doesn’t go back to the County.
Robert Emmons read a letter into the record from Grace Wong. She submitted a petition with 36 signatures from her neighbors to the Board of Commissioners and the Planning Commission, requesting that Lane Code 16.264(5) siting standards for height setbacks and access to telecommunication facilities for all new or replacement telecommunication facilities (e) be revised to require that all new or replacement telecommunication towers must be sited at least 1,500 feet from nearby residences, not on the applicant’s tract and that there not be any variances to the 1,500 foot requirement. She requested that serious consideration be given for the wording of the tower section of the Lane County Rural Comprehensive Plan, similar to ordinances for cellular towers for the City of Warren, Connecticut.
James Wong, 86160 Cherokee Drive, Eugene, read from the Warren, Connecticut ordinance.
Genevieve Brackenbush, 29141 Spencer Creek Road, Eugene, noted the ordinance stated the highest tower could be 200 feet and the setback shall be at least the height of the tower. She recommended that a 200-foot tower should have a greater distance from adjacent property than just the height of the tower. She said this was in case the tower fell, it would allow for scattering of debris.
Rob Handy 455½ River Road, Eugene, asked the Board to err on the side of caution. He suggested the Board consider a moratorium until all of the questions and concerns have been settled. He recommended they use a 1,500 set back from residences and schools and siting cell towers on telephone poles along the highway right of ways in partnership with ODOT. He said highway corridors could best be serviced without 200-foot high cell phone towers. He suggested considering establishing a bond or a deposit for the siting permits for when the technology changes. Then they could return the site to its natural state.
Jan Pastnick 888 Snell, Eugene, noted there are many frequencies but they hadn’t all been measured. She wanted a moratorium on cell phone towers until more is known. She said this was a quality of life issue.
Mary Jane Cody, 92593 Goldson Road, Cheshire, stated she didn’t want any cell phone towers installed on her hillside. She wanted a 1,500-foot setback for the cell phone towers.
Robert McCarthy, 24214 Suttle Road, Veneta, stated the Board has to take steps to protect the citizens.
There being no further people signed up to speak, Commissioner Dwyer closed the Public Hearing.
Weeldreyer addressed Sorenson’s concern about frequency interference. She said that cell phones are like regular phones and where there is an emergency within an isolated area, anytime someone picks up the phone at the same time, it automatically swamps the system and there is difficulty communicating. She noted there weren’t enough cell phone towers in Lane County for everyone at one time. She said that is why the FCC has reserved spectrum for public safety users as well as the military.
Pollock commented that since industry people were not present, they were comfortable with the ordinance. She noted when they had a Planning Commission public hearing, there were people present from cell phone tower companies. She said they are not just building cell phone towers so people would come, there are high schools where most students are carrying cell phones and the towers are needed. She didn’t have a problem with the 1,000 foot setback. She wasn’t willing to change the 1,000 foot setback without industry input. She assumed that the companies were happy with the 1,000 foot setback. She was willing to accept the ordinance but revisiting the setbacks and including schools. She was also concerned about the effects from the wells.
Howe stated that was a recommendation the Planning Commission could make to the Board of Commissioners and the ordinance could go into effect as it is structured, if substantial revisions are not made with direction to come back with subsequent hearings to address additional issues. He said it was up to the Board to decide.
Clarke said the Planning Commission had struggled with developing a mathematical formula for the setback. He said there was no specificity of the number. He was comfortable leaving it at 1,000, but not excluding schools. He was willing to scratch Section (e), as it was a provision the Planning Commission added that said if the landowner put the cell tower 3,000 feet from his house, it had to be 3,000 feet from the neighboring house. He said it was confusing. He was willing to change the setback to include schools and delete the “or” clause. He said they have to make sure that the ordinance as written specifies the property where the cell tower is built.
Clarke thought there needed to be clarity as to where the setbacks are on the property. He added besides the leaching of the concrete in installing the cell phone towers, there is disruption to the aquifer and they didn’t address that in their policy. He thought it would be worthwhile to revisit it in the future. He noted the policy stated there would be monitoring, but he wondered how it would take place. He said it was appropriate to change the setbacks to include schools and if appropriate, delete the second portion and be more specific as to where the setback is measured. He wasn’t comfortable with delaying this matter
Kirkham concurred with Pollock and Clarke, including schools in the setbacks. She wanted to add a 1,200 foot setback.
Clarke recommended bringing the ordinance back to the Planning Commission and working on all of the issues. He said if they could move forward by adding schools and how setbacks are measured, then he suggested the ordinance go forward in legislative format and be accepted with minor changes. He was willing to propose moving forward with those changes. He asked counsel if this motion could be valid.
Vorhes stated the motion would be valid. He said if the Planning Commission showed an interest in changing the setback to include schools, it would be a substantial change that would necessitate coming back. He said the Board could read the ordinance tonight with the pending change and take it up again with another reading in two weeks and be in a position to take action. He said if the Planning Commission wanted to make recommendations on other issues tonight with a discussion versus coming back at a later date would be the commission’s choice.
Weeldreyer stated Lane County doesn’t have much to offer its citizens for protection in the current ordinance. She preferred not to make substantive changes to the document. She didn’t want the restrictive language to be in rural Lane County when there are impacts within incorporated cities in the County. She wanted to use it as a starting place for evaluating tower placements and have Lane County craft a countywide ordinance that would be adopted by the cities. She didn’t want the process delayed any further.
Sorenson thought with tweaking the distance to 1,200 feet that the Board could have a recommendation from the Planning Commission and the Board could approve it. He was in favor of adopting the motion tonight and coming back to clarify the language for the amendments.
Pollock was in favor of adopting the motion as it was. She believed that the schools would not be putting a cell phone tower on their properties and that 4J would get involved. She didn’t want to stop this from happening, but wanted to revisit the matter with cell phone towers in schools.
Betz thought this was a good starting point for the ordinance. She thought this should move forward and was in favor of it.
Weeldreyer asked about changing the language with the setbacks from “or” to “and”. She didn’t think it was substantial to make the change to the one word and meet the spirit and intent of not impacting a neighbor’s property any more than the applicant’s property.
Vorhes said it reads different with the “or”, but the intent of the provision is written in a way that it already sets the minimum at 1,000 feet. He noted the other provision (whether it is an and/or) is a further modification of the 1,000 feet, if the setback is further from the residence on the subject site than any distances that the tower is from an adjoining property owner’s residence. He stated it was up to the board to accept the risk.
Clarke didn’t see where having an additional reading delayed the process. He said if the proposal put forth does not include the schools and language on determining where the setbacks are measured from, he would be forced to vote no.
MOTION: to move to forward the policy as drafted with the following change: specifically Section 5 (e) to read: The proposed telecommunication tower is sighted at least 1,000 feet from nearby residences and schools, not on the applicant’s tract.
Clarke MOVED, Markham SECONDED.
Kirkham asked how the Board would approve this.
Dwyer said the Board would have to approve it before it goes into effect. He said it could be approved and gives direction to staff to make the substantive changes that would require another process.
VOTE: 3-2 (Pollock, Betz, dissenting).
Dwyer thought adding the schools was a substantive change.
Vorhes asked the Board where they want the recommendation to go. He said if the Board was interested in making the change, there needed to be an additional reading as adding schools does constitute a substantial change.
Green thought the Board would be in a better position to tentatively accept the recommendation subject to the review by legal counsel to determine what the implications of the changes would mean. He didn’t think they should adopt an ordinance without knowing what the true implications are. He didn’t think schools could be included due to health and safety issues.
Sorenson was in favor of moving forward with the minor change of the setback distance.
MOTION: to approve Ordinance 4-02.
Sorenson MOVED, Dwyer SECONDED.
Sorenson suggested asking the Planning Commission to review the recommendations that were suggested, giving their opinions and then proceeding to a public hearing on the changes in the ordinance. He wanted to add schools and public buildings.
Dwyer was concerned about jeopardizing the technicality between 1,000 and 1,200 feet that might be construed to be a substantive change jeopardizing the ordinance. He wanted to adopt an ordinance that would not be challenged, giving the Planning Commission direction to bring back the changes including adding schools, public buildings, balloon tests and adding fees that would require independent monitoring. He said the Planning Commission had heard what some of the concerns were by the people who had testified and he was certain they could craft an ordinance that would be more comprehensive.
Morrison concurred with Dwyer. She said they have to go forward with what is in front of them and any discussion they had tonight regarding changes could go back to the Planning Commission and would be a clean process. She noted they have something in the interim and they could move forward.
Dwyer noted it was his intention to adopt those provisions that add schools and increasing setbacks.
Green stated he would not support the motion.
Sorenson withdrew his motion.
MOTION: to adopt Ordinance 4-02.
Sorenson MOVED, Morrison SECONDED.
Green wanted to amend the motion to state they would tentatively accept the motion subject to the approval of legal counsel. He said then he would be more inclined to vote in favor of the motion.
Vorhes noted if there were no changes to the ordinance as proposed, if the motion is to adopt the ordinance as presented with no changes to the text of the ordinance or the provisions in the code, then there is no risk of invalidity for substantial change and failure to have additional readings on the ordinance.
Dwyer stated they would direct the Planning Commission to take under consideration the testimony they had heard regarding schools and increased setbacks and other elements, and set in motion a way to amend the ordinance in a legal fashion that would include and encompass those changes. He noted in the meantime, there would be an ordinance in place that protects people.
Green asked what they would be gaining by adopting this tonight.
Dwyer noted there was an emergency clause that goes into effect at the time of adoption. He said they could have as a board insisted that they put these elements in the ordinance tonight and direct staff to have another reading on these substantive changes that encompass those things and bring back a revised ordinance in 13 days, at which time they would have met the legal notice requirements and it could be adopted in total in an amended and altered form.
Green preferred that alternative.
Sorenson stated there is telegraph language in the code that is out of step with what is now needed. He said the Board should approve this ordinance, asking the Planning Commission to come back with amendments to the ordinance.
Weeldreyer said moving forward gives them the opportunity to put something in place immediately that is better than what currently is in the code. She said the types of changes they are talking about should be explored with other cities so they could do as much as they could jointly.
Green said he was not voting against the cell towers, but thought they could do a better job by having a complete ordinance that would stand. He stated he was voting against the process.
ROLL CALL VOTE: 4-1 (Green dissenting).
Dwyer stated this wasn’t a perfect ordinance and he would rather have included schools and other factors, but it would have caused a delay.
There being no further business, Commissioner Dwyer adjourned the meeting at 10:00 p.m.