An attorney representing Verizon Wireless argues that the Baker City Planning Commission violated a federal law on Dec. 4 when it denied the company’s application for a conditional use permit to build a 70-foot cell tower in north Baker City.

Verizon has appealed the Planning Commission’s 5-2 vote to the Baker City Council.

The City Council will consider the appeal during a public hearing Tuesday, Jan. 7, at 7 p.m. at City Hall.

Verizon’s appeal was filed by E. Michael Connors, an attorney with the Portland firm Hathaway Larson.

He claims, among other things, that the Planning Commission’s denial “violates the Federal Telecommunications Act because it prohibits or would have the effect of prohibiting the provision of wireless services in the City.”

Connors also writes that if the city denies Verizon’s application, “it would be virtually impossible for Verizon to site a tower to resolve the significant gap in coverage and capacity in the City. That would be a clear-cut violation of the Federal Telecommunications Act.”

The majority of the Planning Commission concluded that concerns about how the proposed 70-foot tower would affect views — a complaint several residents expressed to the Commission — could not be mitigated except by requiring Verizon to limit the tower’s height to 50 feet. That’s the maximum the city’s zoning ordinance allows without a conditional-use permit.

Alan Blair, whose two-decade-plus tenure on the Planning Commission ended Tuesday, said he believes commissioners were “fair” and followed the city’s zoning rules in reaching their decision to deny Verizon’s application.

Blair said he’s skeptical about Connors’ claim that it’s “virtually impossible” for Verizon to build a tower anywhere other than on the parcel the company proposed.

But in any case that issue is not within the Planning Commission’s jurisdiction, Blair said.

“It’s not our responsibility to find them a suitable location for their tower,” he said.

Connors also cites court decisions as precedent giving wireless companies “a considerable amount of discretion” in determining whether a gap in cell coverage justifies the construction of a tower.

In the appeal, Connors pointed out that the proposed site for the tower, a 2.12-acre property owned by Carney and Deborah Lansford, is in the general industrial zone.

“The (city’s development code) specifically required Verizon to consider industrial zoned properties first before considering other sites for the telecommunications tower, which it did in this case,” Connors wrote.

The development code allows Verizon to build a cell tower of up to 50 feet tall on the industrial property without a conditional use permit.

The property is just north of D Street between East and Clark streets, near Leo Adler Field and the Baker County Fairgrounds.

Several people who either testified to the Planning Commission or submitted written comments noted that there are also homes in the area.

Blair, who was a longtime chairman of the Planning Commission, said he believes the city should have changed the zoning of that parcel years ago because of its proximity to residential neighborhoods.

“To me that’s part of the problem — there’s no buffer (between the industrial and residential zones),” Blair said.

In terms of views, Connors writes that the city’s zoning code “doesn’t preclude a conditional use merely because it is visible. Rather, (the code) requires that the visual impacts be minimized. Verizon sited and designed the tower in a way to minimize the view impacts to the greatest extent possible.”

Connors also reiterated a point that Verizon made in other documents — that 70 feet “is the minimum height necessary to satisfy the coverage and capacity objectives and therefore minimizes the visual impacts to the extent practicable.”

Verizon has also proposed to add green “branches” to the tower to simulate the appearance of a tree, something Connors contends in the appeal “will further minimize the visual impacts of the facility on the broader landscape.”

Connors writes that the camouflaged tower design is “considerably more expensive” than the unadorned version, and that the city’s zoning code doesn’t require such additions to cell towers.

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