Apr 12, 2012

Cell Tower at Mt. Scott Fuel

The following is a summary of the cell tower that is proposed at Mt. Scott Fuel, located within (your) Mt. Scott-Arleta Neighborhood....

In September of last year (2011) a notice was issued by the City about a public hearing regarding Verizon and Mt. Scott Fuel proposing to build a new cell tower at the site of Mt. Scott Fuel at 6904 SE Foster road.

This Mt. Scott Fuel site is a non-conforming use and non-confirming development that does not fit within the current zoning (or character) of our neighborhood. Furthermore even though the nature of the business is selling landscaping materials from the site, the actual site has no landscaping at all but instead is surrounded by an ugly chain-link fence and concrete walls all around, and on top of that the owners even requested a waiver from the mandatory landscaping requirements associated with the proposed cell tower.

The application required a so-called Type-III zoning review because the applicant was requesting a waiver of the required landscaping, and also because the code section the application was filed under requires the applicant to prove that there is absolutely no other possible alternative to provide the service than to put this new tower within 1500 feet of an existing cell tower. This article in zoning code is to limit cell towers in close proximity to each other, and since there is already an existing tower at 6514 SE Foster and also a roof full of antennas at 4521 SE 63rd Avenue a new tower at this location would normally not be allowed.  

Despite many initial responses in opposition, and letters and e-mails pointing out to the City that this proposal did not meet the City’s zoning code criteria, City planning staff still went ahead and issued a “staff report” stating that all criteria were met and that the proposed tower should be approved. 

Several neighbors took issue with that report, since it was clearly off-base and incorrect.
As neighbors subsequently showed in their responses there were, in fact, many serious issues with this proposed tower, of which some of the main ones were:
1)    The applicant’s and City’s claim that there were no other alternative locations to place this tower was flawed, as several other options were available and are “feasible” which is the criterion per zoning code. Applicant however just preferred the location at 6904 SE Foster for their own convenience.

2)    Applicant had not performed any reasonable search for alternative locations, but had instead just drawn a small circle around the desired location and called that their search area. In a later stage applicant even had to reveal that the proposed spot was actually far from the center of the area where they were trying to increase coverage, but regardless of that they did not budge.   

3)    The application materials contained official letters signed by Verizon’s “RF Engineer”. Neighbors pointed out that these letters were in fact not from an official engineer, but by someone using that title without a license. This is not just misleading but is also illegal by state law, which the neighbors pointed out to the City. In a similar case several years ago, another City in Oregon had refused to consider an application for a cell tower, in part because of such illegal act from the applicant.

4)    One of the other criteria the applicant had to meet was that they needed to prove that the public benefits of this new tower would outweigh any negative impacts that could not be mitigated. Even though the applicant did not even mention any negative impacts at all, let alone address any of those impacts or even show how those would be outweighed by a public benefit.

5)    Neighbors were able to show backed by scientific studies that the total impact to residential property values in the neighborhood surrounding the Mt. Scott Fuel site would be reduced by a conservatively estimated $ 500,000 to $ 1 million due to the new cell tower. This aspect was never mentioned, addressed or taken into account by the applicant or the City.

6)    The applicant provided very confusing and contradicting information as to the Effective Radiated Power (or ERP) of the facility. The ERP is used to determine which code section the application needs to be filed under, and is also used to keep certain high-powered facilities away from neighborhood sites. The different pieces of information provided by the applicant varied between less than 40 watts to more than 20,000 watts!

7)    One of the ways the applicant was trying to justify the different numbers and their filing for a facility of less than 1,000 watts ERP even though it would clearly operate at more than 20,000 watts was by counting the radiated power only for one channel of one antenna, even though the facility would have 9 antennas with 3 channels each.
The neighbors brought these issues to the scheduled hearing and submitted those to the Hearings Officer. The applicant at that hearing requested for the official record to stay open, so that they could submit some new information to strengthen their case.
The Hearings Officer reviewed all information from applicant and from the neighbors in order to determine whether the application did meet City code and after his review he issued his decision in November, stating that the application did not meet City code and should not be approved. The main reasons for his findings were that the application all together substantially lacked credibility and that applicant had failed to provide the required proof of what power levels the cell tower would operate at and how it would meet applicable code. Part of that was due to some of the materials being submitted by Verizon employee who is not a licensed engineer but who was however pretending to be a real Engineer.
Verizon, of course, did not like this outcome, so they decided to appeal that decision to City Council.  Normally such appeal is “on the record” meaning it is only a review to check whether based on all previously submitted information the Hearings Officer’s decision was indeed correct. However, knowing that (based on the merits in this case) they wouldn’t have much chance of a different decision, Verizon showed up at the City Council hearing with a team of attorneys and engineers and submitted new evidence that they requested City Council to consider.  (Which is contrary to reviewing the case on the record, per the official process rules.)  At the January meeting City Council heard arguments from both Verizon’s attorneys and from the neighbors but after 3 hours still felt not comfortable deciding the case, so they allowed Verizon to introduce new evidence and decided to keep the record and process open for that.
In the following weeks Verizon and City staff worked really hard to beef up Verizon’s case and come up with new arguments and information that would support changing the official decision in Verizon’s favor.  
What they ultimately came up with were some memos from City staff from 5 to 10 years ago in which they claimed it would be apparent what the actual intent had been when the City created these applicable code sections regarding cell towers. And even though that “intended language” was never adopted into code and is therefore not actual zoning code, Verizon’s attorney was now arguing that the City should apply their zoning code as it was allegedly intended and not as it is written.

Their argument basically became something like this: “Even though this proposal doesn’t meet the City zoning code as it is stated and written, that is only because the code doesn’t actually state what it really means. Only those who wrote the code many years ago know what was really meant to be included in the code, so even though that is not written in the code or accessible to anyone, that intent is really how the code should be interpreted and applied, as opposed to the code as anyone would read it.”
Because they realized this by itself is a very weak (and frankly a ridiculous) argument, they had also worked hard to increase political pressure on the City Commissioners. Verizon alleged that if the City code would actually be applied as it is written, it would mean that not only this proposed facility would need to be denied a permit, but so would many other cell towers in Portland neighborhoods which in effect would deny the people of Portland having access to cell phone use: If the City Council would side with the neighbors from Mt. Scott-Arleta, they would be responsible for prohibiting further development of cellular phone services in the City and would make Portland a technologically underdeveloped area in the nation. 
They even further increased this pressure by having the regional and national associations for wireless carriers submit letters to City Council stating that City Code on cell towers is outdated and is stymieing growth of this important technology. Even though such statements in reality of course only reinforced the neighbors’ conclusion and position that the current City code doesn’t allow for the proposed cell tower at the Mt. Scott Fuel site, the twist that Verizon came up with on this issue was that because of that the City should just adopt a different interpretation of their zoning code so that this tower as well as others towers could continue to be added to Portland neighborhoods.  

Verizon took that additional information and legal argument into the second City Council hearing on this issue in March 2012. At the hearing, Amanda Fritz first made some statements that suggested that although it may have been illegal for Verizon to submit documents for this application as if being by a real Engineer while they’re in fact not, that didn’t matter to her since Verizon had also submitted some other documents that were from a real licensed Engineer. She then went on to ask whether the tower could perhaps be relocated on the Mt. Scott Fuel site a little further away from residences. At that time Randy Leonard said he didn’t see any use in discussing any such minor details of a case where there were some very significant major flaws in the application, and he then proposed a motion “to deny Verizon’s appeal, uphold the Hearings Officer’s decision and to not allow this cell tower which doesn’t meet City code”.   Unfortunately, the other commissioners did not second his motion, but instead decided that none of the issues brought forward really mattered much and that if Verizon would simply move the tower over slightly within the Mt. Scott Fuel site, they would grant Verizon their appeal and allow them to construct this cell tower. 

This is where the case is right now.

The City is to confirm their approval of Verizon’s application to construct this tower later in April, and citizens of Portland who don’t like this decision and who don’t believe the City acted in accordance with their own zoning code are left only with the option to appeal this decision to the Oregon Land Use Board of Appeals….



Hello Erika said...

Thanks MSANA Blog Post Writer! Awesome article. I do want to clarify that the only people that can appeal to LUBA are those that submitted public testimony either verbally at the public hearing or through a written statement.

Dan PC said...

This is such an informative article. Thanks for all the work you put into it. Who is the author? Is there advice for follow-up action?

Terah Beth said...

Thanks to Marcel (our Neighborhood Transportation Chair)for submitting this summary. I learned a lot.

Anonymous said...

Who do I contact to get involved and stop this from happening? I am very concerned about this issue....

Terah Beth said...

Contact Marcel (our Neighborhood Transportation chair) to learn how to get involved:

Transportation Chair:
Marcel Hermans: euroguy_pdx@yahoo.com

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