These are the Facts –
The following are written statements in the City of Lake Oswego Pre-Application Notes, Case File # PA 18-0084, dated December 13, 2018.
- First Page Heading – Reflects that the application is for approval of a new communications tower in “the Cooks Butte Park & Natural Area.”
- Page 1 — #1 Type of Application, paragraph 3: “This is classified as a major development.”
- Pages 3 & 4 — #5 Height of Structure, (2): The Lake Oswego Code allows for a “maximum height of 75 ft.” for structures in this residential zone. At 196 feet, the proposed tower would be two and a half times the otherwise permitted height of structures in this area.
- Page 4 — #6 Use Regulations and Conditions, part 1: “An emergency communications tower is the same as a ‘telecommunications tower’.”
- The Case File proceeds to refer to this structure as a telecommunications tower or telecommunications facility 21 times over the next 15 pages of the application.
- The consequences of erecting this tower are clearly defined in three separate places:
- Page 4 — #6 Use Regulations and Conditions, part 1: “There is also the likelihood of future collocation requests for commercial telecommunications on the tower.”
- Page 4 — #6 Use Regulations and Conditions (1) (c): “The tower pad shall be sited in a location that permits additional expansion to accommodate future collocated ancillary facilities.”
- Page 5 — #6 Use Regulations and Conditions (2)(b): “Accommodation of Future Collocation. New towers shall be constructed so as to accommodate future collocation… Towers shall be designed so as to accommodate a minimum expansion of three two-way antennas for every 40 vertical feet of tower.” This appears to mean that a minimum of 12 antennas could be placed on the proposed 196-foot tower if approved.
- The word collocation appears in the Case File 13 times.
- Can the City of Lake Oswego itself prevent future commercial expansion and collocation? It is our understanding that the answer is NO and that once a tower is built, the City has no choice under Federal Law:
- Page 6 — #6 Use Regulations and Conditions 2 (c): “In conformance with the Telecommunication Act of 1996, Section 703, a utility shall provide any telecommunications carrier with nondiscriminatory access.”
- What is especially concerning is that both the City of Lake Oswego and Clackamas 800 Radio Group appear to be fully aware of the issues with the Telecommunications Act of 1996, as the Lake Oswego Code requires the applicant agree to allow for future collocation after the tower is built:
- Page 8 — #6 Use Regulations and Conditions — New Telecommunications Facilities – Additional Submission Requirements, item v. (6): “A signed agreement stating that the applicant will allow collocation with other users. This letter shall also state that any future owners or operators will allow collocation on the tower.”
This tower access and collocation issue is important to the telecommunications industry and will not go away. As recently as 2012, Section 1455(a) of the Communications Act was enacted to establish a further limitation on state and local land use authority. Specifically, it provides that “a state or local government may not deny and shall approve any eligible facilities request for a modification of an existing wireless tower or base station.” It defines “eligible facilities request” as a request for modification of an existing wireless tower or base that involves collocation of new transmission equipment.
In other words, if this tower is built, the City will not be able to deny applications seeking to add new transmission equipment to the tower and base. Indeed, the City of Lake Oswego Pre-Application Notes, Case File # PA 18-0084, #6 – New Telecommunication Facilities – Additional Submission Requirements, Item v. (6) makes it very clear that C800 must agree to allow for collocation as a condition of approval.
Erecting or providing access for a commercial telecommunications company is precisely why the tower was rejected in 1994. According to John Emery’s letter, “As clarified in her 1994 addendum to the original deed, Marjorie Emery confirmed that any development… which promoted commercial or technological uses, such as the erection of cellular telephone towers was incompatible with the spirit of the transfer of ownership to the citizens of Lake Oswego.”
As we know, it did not end in 1994 with Marjorie Emery’s affidavit/addendum to the deed. Instead, there was an effort in 2001-2002 to place another tower by C800 on Cook’s Butte. However, the City’s inability to prevent the collocation of additional transmission facilities on the proposed tower site – including commercial facilities – is precisely why it was rejected a second time in 2002.
Now, unlike in 1994 and 2002, in addition to federal law, City law requires that an applicant agree to allow collocation of equipment on new towers. In fact, written acknowledgment of this collocation clause is specifically required in the Case File # PA 18-0084 Application for the proposed tower on Cook’s Butte.
Why is the City of Lake Oswego and Clackamas 800 Radio Group considering a 196-foot tower in 2019, when citizens opposed a 60-foot tower in 1994 and a 152-foot tower in 2002? Especially where a written agreement to allow for the collocation of commercial and other transmission equipment on the tower and base is required.