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Tower violates setback distance

The city of Medford broke its own setback rules when it built a 130-foot emergency communications tower too close to east Medford homes, the state Land Use Board of Appeals has ruled.

The controversial tower that looms above treetops in the neighborhood should have been built at least 61.5 feet from the rear property line on the city's Capital Hill lot, but instead it's only 53 feet from the nearest neighbor's fence, the board decided.

"The only logical inference that can be drawn from the structure of the setback requirement regarding its purpose or underlying policy is exactly the opposite of the inference the city drew," the Aug. 3 LUBA decision states.

Medford City Council will meet in executive session in the coming days to discuss whether to appeal the decision, Deputy City Attorney Lori Cooper said Friday. The city has until Aug. 24 to appeal the decision to the Oregon Court of Appeals.

"It'll have to be discussed with the council to decide what we want to do, and until we do that it's hard to say which direction we'll go," said Councilman Bob Strosser. "I want to know what options exist in terms of the setback question. What are the potential remedies for that?"

Buzz Thielemann, the east Medford resident who filed the LUBA petition, said he thinks the decision should send the city a message that it has to follow its own rules.

"I feel this is a victory for all citizens in Medford," he said. "The codes should apply to everyone."

The city built the tower in December 2010 to improve police and fire communications during emergencies. The tower, which remains incomplete due to the appeals process, replaces a 60-foot tower to the south on the same eight-acre property, owned by the Medford Water Commission.

Neighbors complained that the tower was an eyesore and that they didn't receive any warning from the city before it was erected. Early this year, they appealed the decision to City Council, which reaffirmed the planning department's decision to approve the tower without public notification.

In the LUBA appeal, Thielemann's attorney, Chris Hearn, argued that the city made eight errors in deciding to approve the tower's construction. The tower should have been classified as a Wireless Communications Facility, which would have triggered an extensive public review process, he said.

However, the state board ruled that the tower could instead be classified as a public utility, which would exempt it from the city's normal building permit hearings.

The state board agreed only with Hearn's setback argument and denied the other seven points.

"I'm thrilled because if you win one of the points, you basically win the whole thing, because it's remanded to the city," Thielemann said.

If the city decides not to appeal the decision, it must hold a public hearing to determine how to bring the tower into compliance with its setback rules, said Kristi Seyfried, LUBA executive support staff member.

Thielemann said he hopes the city will remove the tower and find a way to improve the old 60-foot structure.

"I want the city to find out what could be done with the existing system that neighbors have no problem with, and with new technology," he said. "I'm no radio expert, but I think the solution is out there."

One thing's for sure, Thielemann would hate to see the city simply move the 130-foot tower back a few feet to comply with the setback rules.

"I really don't want to see this monstrosity shift to somebody else's backyard," he said. "I don't think anybody would want it in their backyard."

Reach reporter Hannah Guzik at 541-776-4459 or email hguzik@mailtribune.com.