BEFORE THE LAND USE HEARINGS OFFICER OF CLACKAMAS COUNTY, OREGON

Transcription

1 BEFORE THE LAND USE HEARINGS OFFICER OF CLACKAMAS COUNTY, OREGON Regarding an Application for a Conditional Use ) Case File No. Permit to Establish a Wireless Telecommunications ) Facility and Design Review Approval. ) (Verizon Wireless) A. SUMMARY 1. The applicant is Verizon Wireless. The owners are Christopher Weseman and Shelly Weseman. 2. The subject property is located at South Bradley Road, Oregon City, OR The legal description is T2S, R2E, Section 35AD, Tax Lot 1000 W.M. The subject property is approximately 2.26 acres and is zoned RRFF- 5 Rural Residential Farm Forest 5 Acre Minimum. 3. On October 5, 2017, the Hearings Officer conducted a public hearing to receive testimony and evidence about the application. B. HEARING AND RECORD HIGHLIGHTS 1. The Hearings Officer received testimony at the public hearing about this application on October 5, All exhibits and records of testimony are filed with the Planning Division, Clackamas County Department of Transportation and Development. At the beginning of the hearing, the Hearings Officer made the declaration required by ORS The Hearings Officer disclaimed any ex parte contacts, bias, or conflicts of interest. The Hearings Officer stated that the only relevant criteria were those identified in the staff report, that participants should direct their comments to those criteria, and failure to raise all arguments may result in waiver of arguments at subsequent appeal forums. 2. At the hearing, county planner Linda Priesz discussed the staff report and recommended approval of the application. 3. Reid Stewart testified in support of the application. 4. A number of neighbors testified in opposition to the application. Verizon Wireless CUP Page 1

2 5. At the conclusion of the public hearing, the Hearings Officer closed the record. C. FACTS The subject property is an approximately 2.26-acre parcel zoned RRFF-5. The property is located at South Bradley Road, Oregon City, OR 97045, 1500 feet north of the intersection with South Redland Road. The property is roughly rectangular in shape and is accessed by a long driveway. The property is surrounded by other RRFF- 5-zoned properties. The application proposes a 146-foot monopole wireless telecommunications facility (cell tower) with a four foot antenna for a total height of 150 feet. The cell tower would be located in the center of the property in an area of larger trees. Due to the dimensions of the property, it is impossible to provide the required 150-foot setback in each direction, so the application requests an adjustment to allow a 110-foot setback. The application also seeks design review for the proposed cell tower. D. DISCUSSION The staff report does a thorough job of explaining how all of the applicable approval criteria are satisfied. The majority of the findings in the staff report are not challenged by opponents. It would be a waste of the County s money and resources to review and repeat all of the unchallenged findings in the staff report. I have reviewed the findings in the staff report and agree with those findings. Therefore, I adopt and incorporate the findings in the staff report in this decision, except as discussed further. A number of neighbors submitted testimony and argument in opposition to the proposed cell tower. Although opponents generally did not cite any approval criteria in their arguments, I will do my best to apply their arguments to the applicable approval criteria. Opponents argue that everyone entitled to notice of the proposed cell tower did not receive notice. Even if this is true, opponents cannot raise notice arguments on behalf of other people. The opponents who testified against the application all received notice and had ample opportunity to participate in the public process and hearing. Opponents arguments do not provide a basis to deny the application. Opponents argue that there is no need for a cell tower in the area because they have adequate cell phone service already even those opponents using Verizon. Opponents do Verizon Wireless CUP Page 2

3 not identify, and I am not aware of, any conditional use approval criteria that require the applicant to demonstrate a need for the proposed cell tower. 1 An applicant must provide an alternatives analysis that demonstrates the proposed antenna cannot be accommodated by collocation on another tower or support structure. Clackamas County Zoning and Development Ordinance (ZDO) Chapter 837. The applicant provided just such an alternatives analysis. The alternatives analysis is persuasive, and opponents do not challenge that analysis. Even if the applicant were required to prove that there is a need for the cell tower, I agree with the applicant that just because people in the area are able to use their cell phones does not mean that there is no need to improve coverage. As the applicant explained, the new tower is needed not just to provide cell service to people in the area but to handle the ever increasing requirements for use. The applicant adequately explained its proposed need, developed a search ring for potential sites, and narrowed the potential sites down to the subject property. Furthermore, I do not think the applicant would go to such lengths to build a cell tower if it did not think it was needed. Opponents arguments do not provide a basis to deny the application. Opponents argue that impacts on property values, noise, danger from a falling cell tower, and visual impacts should result in denial of the application. ZDO (D) requires that the proposed use will not alter the character of the surrounding area in a manner that substantially limits, impairs, or precludes the use of surrounding properties for the primary uses allowed in the zoning district(s) in which surrounding properties are located. The character of the surrounding area is rural residential use. Previous cases have explained that the inquiry under ZDO (D) entails whether the proposed use makes the exercise of those primary uses substantially worse. Therefore, in the present case, the question is whether the proposed cell tower would make residential uses substantially worse. Initially, any impact on property values is not a relevant consideration under the conditional use criteria. 2 While noise can be a relevant consideration under ZDO (D), in the present case the only noise would come from generators that would be 1 I discuss later the need to demonstrate a gap in coverage for the requested adjustment. 2 As discussed later, impacts on property values can come into play regarding some of the adjustment approval criteria. Verizon Wireless CUP Page 3

4 located in the center of the property. The generators only run for approximately 15 minutes every two weeks, and are not particularly loud certain not as loud as many permitted uses in the RRFF-5 zone. I do not see that this limited duration, limited decibel noise rises anywhere near the standard of making residential uses substantially worse. 3 While falling cell towers is a relevant concern, the applicant persuasively explained that modern cell towers are designed to withstand extremely high winds and seismic activity, and even if they do fall they are designed to collapse in place rather than topple like a tree a long distance from the base of the tower. Again, I do not see that the extremely unlikely possibility that the proposed cell tower could fall onto 40 feet of an adjoining property makes residential uses substantially worse. Opponents also argue that the proposed cell tower would be ugly and would be out of place in the existing rural residential setting. Initially, cell towers are conditional uses in the RRFF-5 zone, so the County has established that the mere presence of cell towers in rural residential areas is not a valid basis to deny such an application. The staff report states that [i]n previous decisions, the Hearings Officer has found that visual impacts and diminution of property are not relevant to any approval criteria for telecommunication facilities. Staff Report While it is true that impacts to property values are not relevant considerations, the staff report is incorrect that visual impacts are relevant to the conditional use analysis. In certain situations, adverse visual impacts could rise to the level of making a primary use substantially worse. For instance, if a proposed use completely destroyed a picturesque view of Mt. Hood or Mt. St. Helens or some other natural or man-made wonder then an application might not satisfy ZDO (D). In the present case, however, the views are of a general pastoral or territorial nature, and there is no evidence that the proposed tower would destroy the view of a particular landmark. In fact, the photosimulations provided by the applicant show very little to no discernible impact from the proposed cell tower. Opponents explain that the trees to the east of the property have been logged since the photo-simulations were created. Even though the proposed cell tower might be more visible from the east, it would hardly destroy scenic views. Just because a 3 Opponents argue that in the event of power failures the generators would run more often. Even with such additional use, however, I do not see that this raises to the level of making residential uses substantially worse. In the event of power outages, low level noise from the proposed generator would seem to be the least of residents concerns. Verizon Wireless CUP Page 4

5 cell tower is visible does not mean that primary uses are substantially worse. ZDO (D) is satisfied. ZDO (A)(3) requires that the cell tower must satisfy the setbacks requirements of the zone and the cell tower shall be set back a distance not less than its height from all property lines. The proposed cell tower is 150 feet, so the required setback is 150 from all property lines. Due to the dimensional limitations of the subject property, a setback of only 110 feet is proposed. ZDO provides: A. Adjustments to the standards of this section may be granted under either of the following circumstances: 1. A gap in the applicant s service exists, and that gap can only be alleviated through the adjustment of one or more of the standards of this section. If an adjustment is to be approved, the applicant must demonstrate the following: a. A gap in coverage or capacity exists in the wireless telecommunication provider s service network that results in network users being regularly unable to connect with the provider s network, or maintain connection; b. The proposed facility will fill the existing service gap. The gap would be filled if the proposed facility would substantially reduce the frequency with which users of the network are unable to connect, or maintain connection, with the provider s network; and c. The gap cannot be filled through collocation on existing facilities, or establishment of facilities that are consistent with the standards of this section on properties other than the proposed site or on the proposed site in a manner which does not require an adjustment under this subsection. 2. The proposed adjustment would utilize existing site characteristics to minimize demonstrated or potential impacts on the use of surrounding properties. For the purposes of this subsection, site characteristics shall include, but need not be limited to, those identified in Subsection (B). Applicants for an adjustment under this provision must demonstrate that the adjustment will result in a lower level of impact on surrounding properties than would be generated if the standard were not adjusted. In considering the requested adjustment, the following may be considered: a. Visual impacts; Verizon Wireless CUP Page 5

6 b. Impacts on view; c. Impacts on property values; and d. Other impacts that can be mitigated by an adjustment so that greater compliance with Subsection (D) occurs. ZDO (A) allows an applicant to seek an adjustment to the 150 setback requirement under either subsection (1) or (2). The staff report finds that the applicant has satisfied the requirements for an adjustment under both subsections. Under subsection (1) the staff report states: Pursuant to Subsection A.1, the Hearings Officer may grant an adjustment when a gap in coverage exists and the gap can only be alleviated through an adjustment to one of the Section 835 standards. The submitted coverage maps demonstrate that a gap in service can only be alleviated through an adjustment to the 1:1 setback standard. Reducing the height of the tower would not alleviate the Applicant s coverage objectives and evidence has been submitted. (Attachment 03 RF Usage and Facility Justification). Staff finds the applicant has demonstrated the need for the adjustment under the circumstances described in Subsection A.1. Staff Report 17. The only specific challenge to the adjustment request is from Gail Pariseau (Pariseau), who argues: [An adjoining tax lot] will be put at risk given the potential for a tower fall. This fall zone requirement should not be abandoned. Setback standards are the cornerstone of providing protection to places, structures, and people. Pariseau s challenge to the adjustment concerns the potential of the tower falling on another property. The ZDO, however, specifically allows for adjustments to this standard. If the mere fact that a cell tower could fall on adjoining property were enough to defeat an adjustment request then there would be no way to obtain such an adjustment. Clearly the ZDO allows for some circumstances the circumstances set out in ZDO (A)(1&2) when a cell tower is close enough to another property to potentially fall on the other property. The applicant s narrative and the staff report address the requirements for an adjustment under ZDO (A)(1) and explain how the adjustment requirement is satisfied. Opponents do not acknowledge, let alone challenge, those findings. Pariseau Verizon Wireless CUP Page 6

7 argues in a different portion of her memorandum that Verizon must show that the area they intend to beam to is underserved by any and all providers. (Emphasis in original.) Pariseau is incorrect. As ZDO (A)(1) states, the applicant must demonstrate a gap in coverage or capacity exists in the wireless telecommunication provider s service network * * *. (Emphasis added.) The gap in coverage refers to the gap in the applicant s coverage not a complete gap in coverage regarding all providers. As Pariseau herself states, some nearby residents have kept Verizon by using boosters, while others have switched to a competitor. This further establishes that there is a gap in coverage for Verizon customers. ZDO (A)(1) is satisfied. The staff report also states that an adjustment is warranted under ZDO (A)(2). Initially, the applicant did not request an adjustment under ZDO (A)(2) and did not provide a narrative with any evidence supporting such an adjustment. The staff report states that based on an earlier decision by another Hearings Officer that this provision allows the applicant to focus on the desired subject property itself. In that case Z AAC & Z D there was no opposition to the requested adjustment, and in fact the neighbors were all in favor of the adjustment because it would improve their coverage. That Hearings Officer specifically stated that the case should not be used for precedential purposes. ZDO (A)(2) specifically requires applicants to demonstrate that the adjustment will result in a lower level of impact on surrounding properties than would be generated if the standard were not adjusted. There is nothing in ZDO (A)(2) that allows the applicant to focus on the desired subject property itself. An adjustment under ZDO (A)(2) is not warranted. An adjustment must only satisfy ZDO (A)(1) or (A)(2), and ZDO (A)(1) is satisfied, so the requirements for an adjustment are satisfied. E. DECISION Based on the findings, discussion and conclusions provided or incorporated herein and the public record in this case, the Hearings Officer hereby APPROVES application Z C and Z D, with the following conditions of approval. Verizon Wireless CUP Page 7

8 Planning & Zoning Conditions of Approval F. CONDITIONS OF APPROVAL 1. Clackamas County Department of Transportation and Development, Building Codes Division, approval of a building permit and related plumbing, electrical, mechanical permits, if applicable, are required for this facility. 2. The 146-foot monopole shall be constructed in the location shown on the submitted site plan dated June 29, No lighting or marking shall be placed on the tower except as required by state and/or federal regulations. 4. The monopole shall not exceed 150-feet above ground level. 5. The monopole shall be painted or coated a non-reflective light grey color to match the northwest sky. 5. The applicant shall obtain a Utility Placement Permit prior to commencement of utility work within the County right-of-way. 6. The applicant shall remove the facility from the site when the applicant or any other successor in interest ceases to use it as a communications facility. 7. The telecommunications facility shall be located within a fenced area that is enclosed on all sides. The enclosure must be at least six feet tall and sight obscuring. 8. The telecommunications facility shall be designed and built to accommodate collocation for two additional carriers and the equipment identified in Subsection B of the Clackamas County Zoning and Development Ordinance. 9. All construction shall comply with the relevant requirements of the Oregon Structural Specialty Code as administered by the DTD, Building Codes Division. Foundations and drainage improvements shall be designed to ensure structural stability. 10. Maintenance of the leased area is the responsibility of the owner/operator of the wireless communication facility. The owner/operator shall prevent the facility from entering into a state of disrepair due to negligence, vandalism, natural hazard, or any other source. 11. This permit is approved for the specific use and facility described in the application to the extent it is consistent with the conditions of approval. Verizon Wireless CUP Page 8

9 12. This permit is granted subject to the conditions of approval. Non-compliance with any of these conditions constitutes a violation of this permit and shall be cause for revoking this permit. 13. This Conditional Use shall expire in the event the approval is not implemented within four (4) years of the final written decision. The Conditional Use approval will be considered implemented when all necessary permits for development have been secured. 14. Prior to issuance of a building permit, the applicant shall file and receive a determination from the Oregon Department of Aviation determining that he structure is not a hazard to aviation safety. Such approval shall be submitted to this file. 15. The height of the new structure shall not penetrate FAA Part 77 Imaginary Surfaces. 16. The tower may need Marking Lights, per FAA design. 17. The federal Endangered Species Act (ESA) is not a criterion for approval of this application. The County has reviewed the approval standards in light of the requirements of the ESA and believes that the criteria for approval are consistent with the terms of the ESA and has submitted the Development Ordinances for consideration for a "4(d)" programmatic limitation. However, the analysis included in this report does not include an evaluation by the County of the application for consistency with the ESA nor does the report reach any conclusions concerning that federal law. The applicant is responsible for designing, construction, operation and maintaining the actives allowed by an approval of this application in a manner that ensures compliance with the ESA. Any question concerning this issue should be directed to the applicant, its consultants and the federal agencies responsible for administration and enforcement of the ESA for the affected species. Engineering Division Conditions of Approval 1. All frontage and on site improvements shall be in conformance with the 2010 Clackamas County Roadway Standards. 2. The applicant shall design and construct an on-site turnaround, near the monopole lease area, consistent with Roadway Standards drawing C350, or an alternative design approved by both the Fire District and Engineering staff. The turnaround shall be included within the ingress and egress easement. 3. Prior to the issuance of a building permit, the applicant shall obtain a minimum 20- foot wide, permanent easement for ingress and egress from S Bradley Road to the lease area. The easement shall include utilities, unless a separate utility easement is provided. Verizon Wireless CUP Page 9

10 4. The applicant shall design and construct the private road/driveway, between S Bradley Road and the lease area, to standards contained in the Clackamas County Roadway Standards. The private road/driveway shall meet the following standards: a. The minimum width for the driving surface shall be 12 feet and shall be centered in a minimum 20-foot wide clear zone. b. A paved approach shall be constructed at the approach to S Bradley Road in accordance with Roadway Standards Drawing D500. c. Prior to the issuance of a building permit, the applicant shall verify the existing access easements, and location of the access road within the easement. The access easement shall provide a minimum 20-foot wide legal access from S Bradley to the lease area, for ingress, egress, and utilities, except where the easement is required to be wider to accommodate turnouts, radii, the turnaround, etc. d. The private road shall be constructed in accordance with Roadway Standards drawing R100, with a minimum of 9 inches of 3/4 minus crushed, graded and compacted rock on a compacted base and subgrade, over geotextile fabric, and shall be able to support a 75,000-pound fire apparatus. The applicant s engineer may present a value engineering assessment of the existing gravel surface at the time of permitting for review by the Engineering Division. The onsite parking space and turnaround area shall provide the same structural section as the private road. e. At the intersection of the private road and S Bradley Road, the applicant shall minimum sight distance of 305 feet north and south. Sight distance shall be measured 14.5 feet back from the edge of the travel lane/fog stripe at a driver s eye height of 3.5 feet to a height of 3.5 feet in the center of the oncoming travel lane. The applicant shall demonstrate adequate sight distance as part of the development permit, with plans identifying vegetation clearing, grading and sight lines. In addition, no plantings at maturity, retaining walls, embankments, fences or any other objects shall be allowed to obstruct vehicular sight distance. f. Written verification must be received from the local Fire District that the private road will support a fire apparatus, that road grades and surfacing materials are acceptable, that a sufficient turnaround exists or will be constructed, that corner radii are acceptable, and that vertical (13.5 feet) and horizontal (20 feet) clearances are acceptable. Attention must be given to weight limits of culverts. The applicant shall obtain written approval of the road construction plans from the local Fire District prior to issuance of a Development Permit. Verizon Wireless CUP Page 10

11 g. Positive drainage must be provided for surface water to an acceptable outfall. Erosion control measures shall be installed and maintained throughout the construction process. h. A Development Permit is required for site development, including the access road, on-site circulation and sight distance. Construction plans shall be prepared and stamped by an Engineer registered in the State of Oregon and a Development Permit shall be obtained from the Engineering Division. To obtain a permit the applicant shall submit detailed construction plans to Deana Mulder, who works in the County s Engineering section. The applicant shall also provide a Performance Guarantee equal to 100% of the estimated cost of construction plus a 25% contingency and pay an Inspection Fee. DATED this 26 th day of October, Fred Wilson Clackamas County Hearings Officer Verizon Wireless CUP Page 11

12 ENDANGERED SPECIES ACT NOTICE The federal Endangered Species Act (ESA) is not a criterion for approval of this application. The County has reviewed the approval standards in light of the requirements of the ESA, believes that the criteria for approval are consistent with the terms of the ESA and has submitted the Development Ordinances for consideration for a "4(d)" programmatic limitation. However, the analysis included in this decision does not include an evaluation by the County of the applications for consistency with the ESA nor does the decision reach any conclusions concerning that federal law. The applicant are responsible for designing, constructing, operating and maintaining the activities allowed by an approval of this application in a manner that ensures compliance with the ESA. Any question concerning this issue should be directed to the applicant, their consultants and the federal agencies responsible for administration and enforcement of the ESA for the affected species. APPEAL RIGHTS ZDO (F) provides that, with the exception of an application for an Interpretation, the Land Use Hearings Officer s decision constitutes the County s final decision for purposes of any appeal to the Land Use Board of Appeals (LUBA). State law and associated administrative rules promulgated by LUBA prescribe the period within which any appeal must be filed and the manner in which such an appeal must be commenced. Presently, ORS (9) requires that any appeal to LUBA shall be filed not later than 21 days after the date the decision sought to be reviewed becomes final. This decision will be final for purposes of a LUBA appeal as of the date of mailing (which date appears on the last page herein). Verizon Wireless CUP Page 12