No, no, a half-dozen times no – but American Tower Corp. (http://www.americantower.com) doesn’t give up easily. It plans to appeal the six denials (so far) of more than a dozen 150-foot cellular phone towers the nation’s largest tower builder wants to plant around Deschutes County.
“We are going to appeal all of them (the denials),” Don Larson, ATC’s Oregon project manager, said Wednesday in the wake of a stunning 0-for-6 rejection in recent days of proposed towers off Brosterhous and Butler Market roads in Bend (http://www.ci.bend.or.us), and four county (http://www.deschutes.org) sites: atop Laidlaw Butte in Tumalo, (where the county also rejected an existing 60-foot cell tower), on Plainview Road, at the Halligan Ranch on Highway 97 south of Redmond, and in Deschutes River Woods south of Bend.
City-county Hearings Officer Karen Green wrote four of the denials, having also rejected the Cellular One/Tumalo Irrigation District pole that is the subject of a Feb. 13 appeal hearing before county commissioners. Bend Hearings Officer Tia Lewis cited the same general reasons for rejecting the two proposals made within the city.
The county has been looking at tightening its cell tower rules, which likely wouldn’t give American Tower any greater odds of success in a hearing before county commissioners. The city appeals, meanwhile, could mark the first time the Bend City Council has heard a cellular tower case – unless the new “slow growth”-dominated council decides to let the hearings officers’ rejections stand as the city’s final decisions. That could prompt the company to take its appeal fight to Oregon’s Land Use Board of Appeals.
County Principal Planner Kevin Harrison noted Wednesday that the county has approved some cellular poles and towers recently – but they were ones proposed by cellular phone providers, not by an “absentee landlord” like American Tower, which leases sites and erects poles for cellular companies to rent space on. That’s a key reason why ATC is not doing well in the face of strong neighborhood opposition.
The company has provided letters of intent from cellular and wireless companies that intend to make use of the towers, but the hearings officers say the applicant itself must be a cell provider in order to pass muster.
Tower firm faces delays: `We just have to play it out’
“Essentially, we feel that letters of intent from carriers are just exactly what they say they are,” Larson said. But he added that ATC “cannot change the rules” in place at the time the applications are filed. “We have to play by the rules,” he said.
The denials and subsequent appeals cost not just money but time and are delaying American Tower’s efforts to build in Central Oregon, Larson acknowledged.
“We’re going to appeal and state our cases in each one” of the rejections, Larson said. “We just have to play it out.”
The decision to appeal was no surprise to Damian Syrnyk, a county associate planner who has been working on the cellular issue for several years. “I would have been surprised if they hadn’t” appealed, he said.
At their weekly meeting next Wednesday, commissioners will review the planning commission’s proposed changes in the wireless communications ordinance as planners seek direction on what revisions to consider, Syrnyk said.
In advance of that meeting, Syrnyk has been compiling a list of cellular pole and tower approvals by county planners over the past year, and there’s been quite a few, he said.
County planners have been approving smaller poles; La Pine request hits similar snag
Examples include US Cellular’s 50-foot lattice tower on a butte west of Black Butte Ranch and a 30-foot wooden pole erected by Washington-Oregon Wireless (WOW), a Sprint PCS affiliate, on Highway 97 south of Redmond (near the rejected Halligan Ranch site). “They were also very small (towers), compared to what American Tower is looking at,” in terms of height, Syrnyk said.
A hearing was held last week in Bend on an application by Americom, working as a local agent for WOW, for a 125-foot tower proposed at La Pine’s sewage treatment facility on Reed Road. That hearing “started out well but didn’t end well,” Syrnyk said, because Americom could not guarantee that WOW would use the tower, so “it could run into the same problems American Tower has,” Syrnyk said. On the plus side for the proponents, only tower foes Tom and Michelle Grimm and Linda Moskowitz turned out for the hearing – the only La Pine residents on hand were sewer district representatives, the planner said.
In fairly identical denials, Lewis said American Tower failed to show its proposals met the county definition of a “wireless telecommunications facility” – and that even if it did, the firm failed to prove the towers needed to be sited in a surface-mining zone, in the case of the Deschutes River Woods proposal, or the exclusive farm use zone, for the Halligan Ranch site.
“At a minimum, the applicant must submit evidence describing the alternative site analyses performed, identify each alternative site and explain why each alternative site was rejected in favor of the subject site,” Lewis wrote in both cases.
In a similar ruling denying the city requests, Green said the letters of intent to use the poles are not sufficient evidence to demonstrate the applicant’s proposal is a “utility,” as the city regulations define it. The rules establish siting standards that require an evaluation of whether the proposed utility is located so as “to best serve the immediate area” and “to minimize (its) effect on scenic values,” Green noted. Without such information, Green wrote, “there is no sufficient evidence from which I can make findings that these siting standards have been met.” She said the submitted drawings and photo simulations showed “at least three different designs and is purely speculative.”
In her county rulings, Green said the county requires that applicants have Federal Communications Commission licenses, and went on to say that neither ATC nor US Wireless is a licensed provider. She noted in the Laidlaw Butte ruling that ATC had cited two cases from other jurisdictions to indicate a “common practice in the telecommunications industry” of companies building towers for lease to providers. But Green wrote, “The issue here is not whether it is common practice for the applicant to do what it is proposing to do. The issue is whether that practice is permitted under the language of the county’s zoning ordinance. I have found that it is not.”
In the Plainview Road decision, Green said American Tower failed to include specifics about the number, size, location, appearance or operating characteristics of the antennas that would be installed on the proposed steel monopole. She also cited a lack of evidence about coverage areas and gaps, to show the tower is needed. Green also knocked down ATC’s claim that coverage areas were proprietary information, noting that wireless providers US Cellular in Bend and VoiceStream Wireless in Redmond had provided that information when they applied for their own poles.
Tom and Michelle Grimm and Linda and Ralph Moskowitz mailed letters and self-addressed stamped post cards to all 613 members of the Tumalo Irrigation District on Wednesday, urging them to speak out against the 60-foot tower that Cellular One and the district erected last year, prompting a code enforcement complaint by the county.
Tom Grimm said they were dismayed at an irrigation district (http://www.tumalo.org) meeting earlier this month when district officials refused to discuss possible alternatives to the tower and instead chose to press on with their appeal to county commissioners.
But Grimm also said he’s “absolutely” pleased by the half-dozen new denials — seven, if you count Green’s rejection of the 60-foot Laidlaw Butte tower.
“It’s a basis for future applicants to see that the county’s regulations require things that tower builders cannot provide — they have to be (wireless) providers. With the ordinances, they are not letting them willy-nilly put anything up that doesn’t have a use.”
Still, Grimm wants to see the county adopt even tougher rules that would, among other things, require annual checks on the towers. He also noted that new-generation wireless now being developed won’t need such tall towers, as they use smaller “repeaters” that can be hidden in buildings and the like, while providing better service.