Serious concerns over the threat of increased interference with police, fire and other public safety radio communications must be addressed before the owners of several broadcast antennas atop Awbrey Butte should be allowed to build a new 300-foot tower and boost the height of two others, a city planner said.
In a 39-page staff report that sets the stage for a combative Thursday night hearing at Bend City Hall, city Senior Planner Dale Van Valkenburg also cited other issues not yet resolved to city planners’ satisfaction, such as wind noise created by the towers and unanswered questions about possibly combining FM radio antennas on existing towers, and/or the possibility of parceling out some antennas or towers to other locations.
In findings issued Thursday, after review by Community Development Director James Lewis, Van Valkenburg said the applicants, Awbrey Towers LLC (leaseholders who bought the site atop the 4,225-foot summit from Deschutes County in 2000 for $1.7 million) had proven a need for the new or expanded towers proposed over the next five years, in the first of two phases. Much of that need is driven by federal requirements to move the nation’s television broadcast system from analog technology to digital TV (also called “DTV”).
During that period, Combined Communications would build a 300-foot tower, while the 20-year-old Oregon Public Broadcasting tower, now tallest on the site at 300 feet, would be raised to 350 feet. Meanwhile, the 200-foot Gross Communications tower also would rise to 300 feet, and Western Radio would build a new, 140-foot tower, while dropping its existing 100-foot tower to 40 feet.
But Van Valkenburg said the proponents have failed to prove the need for a proposed second phase of expansion, in six to 10 years. In that phase, the current 200-foot KTVZ tower would rise to 300 feet, the 95-foot American tower to 195 feet, and Cowan Broadcasting Co.’s 115-foot tower also to 300 feet. The city planner said the Phase 2 proposal should be a separate, future land use decision, with public notice and the opportunity for appeal, although the issues could be confined to the need for those facilities.
The applicants claim Federal Communications Commission edicts under the 1996 Telecommunications Act pre-empt local decision-making on issues such as interference with law enforcement transmission facilities, as well as neighborhood health and interference concerns. Van Valkenburg urged Hearings Officer Karen Green to confirm if those FCC rules apply, and said if she “finds that the preemption is not fully applicable, then this (law enforcement interference) issue must be resolved prior to any approval.”
The many issues swirling around the potential Awbrey Butte tower expansion, which first came to public light more than a year ago, rise about as tall as the butte and towers themselves, ranging from the political and legal to the technical, financial and – last, but surely not least – aesthetic.
One only needs to recall the furor over the infamous “golf nets” and the wrangling over Deschutes County’s proposed cell-tower rules to know that, when it comes to tall man-made objects in Central Oregon, the past is only prologue – and today is a whole different story.
The butte has had broadcast towers atop it for more than 40 years, but homes for less than 20, which leads critics to wonder why residents moved there, if they didn’t want to live near the towers. The neighbors, meanwhile, say they weren’t told to expect such a major expansion of the tower site. They point out that the land is still zoned for residential uses, and they want other locations to be seriously explored, in order to avoid expanding the “tower farm” in their area, and to limit the impact on any one part of the region.
More than 1,500 property owners within 4,300 feet of the 20-acre parcel were notified by the city of the tower proposal, due to the proposed height of the towers. More than 100 people have submitted letters in opposition, some as a result of a separate postcard mailing by the group Save Our Skyline (http://www.saveourskyline.org), which has helped to coordinate much of the opposition.
Promontory Drive resident Debi Curl has been heavily involved with the group, although she noted that her home faces away, not toward the tower site.
“Moving to this size of a tower farm – it’s unimaginable, to me, that our city would even consider that,” Curl said as she kept busy, putting in long hours on research and preparation for the hearing.
Curl said the 100 or so submitted letters show a pretty strong response rate, considering that many mass mailings generate only 5 percent response. “I can tell you at least 50 people I talked to who didn’t even notice it came in the mail,” she said.
‘NIMFY’: Not In My Front Yard
The neighbor said she’s never been contacted by the tower proponents to discuss her concerns, since a contentious neighborhood meeting held a year ago. On the other hand, Curl said, “My goal is to do this with a respectful process. I want to do it with sincerity and concern for the community, and at the same time, respect for people who do business here.”
She rejected the tired NIMBY (Not In My Back Yard) label, but threw out a new one of her own: NIMFY – Not In My Front Yard. She said it fits not just the folks on the butte, but is something everyone in the city should be concerned about: “It’s not what everybody is looking away from. It’s what we’re looking at.”
Tami MacLeod, attorney for Awbrey Towers LLC, also toiled through the weekend, preparing responses to Van Valkenburg’s concerns, as well as those raised by critical neighbors.
“I think we’re very pleased with the staff recommending approval,” she said Saturday. “We’re not surprised by the issues raised, and feel we’ll be able to adequately address them.”
Asked about the law enforcement radio-interference issue, MacLeod said, “We’re making slow but steady progress. We’re exploring a lot of different avenues on that issue, some of them related to an agreement with them, some of them not.”
But Police Chief Andy Jordan said Monday that he and Stiles “have been waiting to hear from Awbrey Towers LLC with a proposal.”
“The first one they sent us was not acceptable, but they have said our fears will be alleviated,” the police chief said, adding that the agencies “will have a presence at the hearing, if we cannot work out something with them.”
The neighbors, meanwhile, have raised a wide spectrum of concerns: the still-debated health implications of electro-magnetic (EMF) and radio frequency radiation emissions, as well as ongoing interference woes with such electronic gear as garage door openers, phones and VCRs.
They also have aesthetic concerns, of course, and many fear a drop in property values, although private appraiser Dana Bratton concluded in a letter submitted by the tower partnership that there would be “little to no adverse impact” on surrounding property values from the proposed new 300-foot tower. (Curl said the letter indicated that Bratton based his opinion only upon a verbal description of the tower, rather than a detailed set of plans.)
Several letters supporting the proposed towers also were received, pointing to the public service provided by broadcasters, and the lack of other suitable sites, Van Valkenburg noted.
But some of the strongest concerns have been raised by local police and fire agencies that have their transmission gear on a 200-foot-tall U.S. Forest Service tower, which is not involved in the current land use application. (Nor are several other, smaller towers also located on the site.)
“Raising the tower heights and adding additional towers and antennas at the Awbrey Butte communications site could have devastating effects on communications for the city of Bend and Deschutes County public safety agencies, as well as the city of Bend Public Works, Dial-A-Ride and other commercial users of the site,” wrote Tim Beuschlein, a technical specialist for the Bend Police Department.
No agreement yet between tower owners, police
Sheriff Les Stiles also wrote “to voice my strong concerns over the proposed expansion” of the butte’s tower facilities, noting that the sheriff’s office leases space on the Forest Service tower for 911, police, fire, Air Life and other uses.
Stiles said his agency already is trying to deal with interference occurring at the site, and that radio techs for the city and county “tell me it is reasonable to assume the proposed expansion will cause even greater interference.” Stiles urged that the applicant be required to pay for a study to determine the potential impacts, how they can be mitigated, and how much that will cost.
After receiving those comments, the applicant put its request for site plan review and a conditional use permit on hold in early January, a month after the application was submitted, and waived the city’s typical 120-day review time line, in order to meet with the agencies and work to resolve the issues. Van Valkenburg said no response had been received by city planners by the time his staff report was issued Thursday.
The “utilities” portion of Bend’s city ordinance provisions that apply to “special uses” states, “As far as possible, transmission towers, poles, overhead wires, pumping stations and similar gear shall be so located, designed and installed to minimize their effect on scenic values.”
Western Radio proposes a “lattice” type of tower – wider and thus more visible than the slender, monopole type, which also needs guy wires. Van Valkenburg noted that “the lower height permitted by use of the lattice tower is an acceptable tradeoff, as long as the tower is finished in the light galvanized metal gray discussed in the application (the tallest, OPB’s tower, is painted orange and white, as the Federal Aviation Administration required).
City rules also say that such proposed uses must “have a minimal adverse impact on the property value, livability and permissible development of the surrounding area.” In their proposed findings, the applicants claim that “livability may actually improve” if the towers are raised, as interference suffered by some homeowners is likely to decrease.
After reviewing the tower owners’ photo simulations of the new and raised towers, Van Valkenburg wrote, “It is staff’s opinion that the submitted photo simulation is an accurate depiction of how the view shed might be impacted by Phase 1 development, and that impact is minimal. Staff finds it likely that most casual observers would not notice the change.” That’s not the case with the Phase 2 proposal, for which “staff believes that a casual observer would notice `something has changed’ atop the butte,” the planner wrote.
Visual impact `not terribly significant,’ planner says
Later in the report, Van Valkenburg said the city planners concluded “that the visual impacts of the proposed Phase 1 tower expansion will not be terribly significant, as views from the majority of the city. As submitted, Phase 1 represents a reasonable compromise between the needs of the … operators (and the benefits they accrue to the region), and the visual impacts associated with the expanded towers.”
“The proposed tower structures do have the potential to impact surrounding property values,” Van Valkenburg acknowledged. But he said, “Neighboring property owners have provided no data to substantiate these assertions, and staff notes that the record indicates the current array of towers existed on the site prior to any homesite development within the surrounding Awbrey Butte master plan area.”
“Thus, whatever perceived impact on property values associated with the towers that may now exist likely also existed when the current owners purchased their property,” the planner found.
Van Valkenburg said the applicant has justified the additional tower heights, showing, for example, that raising the Western Radio tower would cut interference among existing users and provide “co-location” opportunities for other carriers, reducing the need for more towers.
“The applicant has also demonstrated that both KTVZ and OPB are under FCC mandates with strict timelines to establish digital television broadcast capabilities,” the planner wrote. OPB plans to install “a new taller but more slender antenna atop the existing 233-foot supporting tower,” he said. But to provide capacity for the DTV antennas, the tower owners will have to evict three existing FM radio tenants – KMTK, KLRR and KTWS.
“The new 300-foot Combined Communications tower and expanded Gross Communications tower would provide new tower space for these three existing broadcasters at a height that should help to reduce existing interference issues experienced by neighbors (law enforcement agency interference issues notwithstanding),” Van Valkenburg wrote.
But the city planner went on to say, “The applicant has not identified any specific users or their potential needs for Phase 2 of the master plan. Staff must conclude that the additional tower height is being requested in order to provide speculative lease space for potential future users.” While the need for more tall towers could be proven in the future, he wrote, “a lower tower height would unquestionably have lesser visual impacts and be more aesthetically pleasing.”
The applicants also laid out a list of other sites they reviewed for possible placement of its “T&R” (transmission and reception) facilities. They noted that FM radio, like cellular phones and pagers, require “line of sight” transmitting, so a high, unobstructed location provides the highest quality signal.
For example, they said, the FAA wouldn’t allow a new tower on Powell Butte, citing a hazard to air travel, while an existing FM site northwest of Tumalo Falls, commonly called Jack Pine Ridge, is surrounded by Forest Service land not available for tower location, and also is heavily shaded, which reduces the level of service. Other buttes around the region also are unworkable, they said, while there are problems with using other high spots around the city. The applicants said, “the adverse visual impact of randomly dotting Bend’s skyline with towers is significant and undesirable.”
City wants more info on alternatives
The applicant has made a “persuasive argument … that the present tower farm location atop Awbrey Butte is … preferred for a variety of reasons, including its topography, its central location within Central Oregon, and its present use and ownership,” Van Valkenburg said. But he also said that neighbor Curl raised the question of combining FM antennae on existing towers, or moving some facilities elsewhere, to free up space.
“The submitted master plan does not explore these alternatives, but rather appears to study the alternative sites as an `all or nothing’ proposition for all of the site’s facilities,” the planner wrote. He said Curl’s questions should be addressed by the applicant before any approval of the new Combined Communications or expanded Gross Communications towers, both intended to accommodate FM antennas that must be moved to accommodate DTV on the OPB and KTVZ towers.
Van Valkenburg concluded that the new and raised towers “will have an impact on the scenic values of the surrounding area, as (well as) the Awbrey Butte skyline as viewed from throughout the city.”
“However, such facilities are an undeniable necessity, with obvious benefits to the community as a whole,” the planner wrote. Most of the objecting property owners were “opposed not only to the expansion, but even further desiring the entire facility to be relocated to a site that does not as directly impact their property.”
Van Valkenburg said city staff are “certainly sympathetic to the concerns” raised by neighbors, but that “the fact remains that Awbrey Butte was utilized as a communications site long before homesites were ever developed near its summit.”
“The applicant has demonstrated that the proposed towers of Phase 1 are the minimum necessary to meet immediate needs, and that no other reasonable alternative site exists for the facility,” the planner wrote. Faced with potential loss of some FM radio broadcasters, and possibly jeopardizing OPB’s and KTVZ’s FCC licenses, Van Valkenburg said that “at least Phase 1 of that expansion will accrue benefits to the general populace of Central Oregon.”
Brooks Resources Corp., the developer of Awbrey Butte, doesn’t appear to agree. It’s also submitted a letter to city planners, expressing concern about the proposal and warning it “may result in a significant decrease in the value of Brooks Resources … property located near the proposed sight,” in the words of Jade Mayer, chief financial officer.
“Property devaluation could result from the proposed towers with aesthetic blight and an eroding of the character of the neighborhood that currently exists on Awbrey Butte,” Mayer wrote. “As Brooks Resources still has several acres to be developed on Awbrey Butte, concerns about property values are relevant.”
Then there are the concerns raised by neighbors such as Pickett Court resident Helen Fisher, who invited officials to come to her home and see how when one turns on a “boom box” tape deck, with the radio off, “radio stations come in loud and clear in almost every part of the house. … Our home is literally being bombarded with RF radiation.”
Operators `not asking for 10 more towers’
Neighbor Curl noted that the FCC has modified its requirements, enabling stations to go on the air with cheaper, lower-powered DTV facilities, giving them more time to gain experience before having to match their current service area and pick their “post-transition channel.” She also said she’s been unable to find any evidence that the FCC’s rules pre-empted local decisions on TV and FM radio broadcast towers, unlike the rules regarding cellular/wireless towers.
But lawyer MacLeod said, “The timelines are still tight. The fact is, to have any DTV transmission, you have to add an antenna. I’ve been saying from the very beginning that we’re out of tower space. Some juggling needs to be done, and is being done.” Going with a lower power at the start still would require a new antenna, she said, “and it’s a temporary fix. I do know the FCC has stopped granting extensions … (and) Congress is really firm on the DTV roll-out.”
For example, the ’96 Communications Act says licenses for analog TV service expire at the end of 2006, and the FCC must reclaim that spectrum for other uses, unless conditions for an extension are met.
The tower owners’ attorney also pointed out that the Phase 2 proposal only was included at the city’s request, in order to lay out potential needs at the site for up to a decade. “Instead of having a kind of piecemeal process, it was requested – and we thought it was a good idea – to tell everyone the maximum we want to do over 10 years,” MacLeod said.
“We’re not going to be coming in and asking to put 10 more towers up there. This is all we’re asking for,” she added. “That’s why it’s phased. Ad if we’re going to reduce the overall electronic interference, that only happens if we do the 10-year plan. We want to get all the high-power (transmitters) up and away from the ground.”
Curl was pleased that Van Valkenburg agreed with her that the issue of combining FM antennas or parceling out some to other locations needs to be addressed.
“The premise of the application is they are going to put these antennas on taller towers, therefore reducing interference for neighborhoods,” she said. “However, they don’t address anywhere in the master plan what they are going to do from the ground to the top of the tower. And if we think they are developing vertical real estate to use only the top 50 feet of the tower, we’re fooling ourselves. Once they build the tower, they are pretty much free to adorn them however they see fit. The FCC so rarely checks up on a site.”
“If you ask me, our city ordinances are woefully inadequate, in terms of cell towers, and other towers,” Curl said.
No one expects a decision at Thursday’s hearing – in fact, if everyone who wishes to gets to testify, it could be a long night, possibly even continued to another night, considering how contentious the issues are.
Either way, the written record is likely to stay open for a few weeks, with a decision several weeks after that. Green’s ruling can (and, one suspects, probably will) be appealed, first to the city council, which has the option of deciding whether to hear the matter or letting the hearings officer’s ruling stand. That would send it on to the next level, the state Land Use Board of Appeals, which can take months to hear the case and issue a ruling.