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066-09Action: PLANNING COMMISSION: April 15, 2009 ❑ APPROVED ❑ DENIED BOARD OF SUPERVISORS: May 13, 2009 ❑ APPROVED il DENIED RESOLUTION Denying Conditional Use Permit Application Number 01 -09 of AT &T, Wesley Helsley, Melissa Helsley -Hall, and Christy Lowrey/Dewberry for a Telecommunications Tower Facility on Properties Located at 2042 and 2060 Martinsburg Pike, Tax Parcel Numbers 43 -A -130 and 43 -A -132, in the Stonewall Magisterial District WHEREAS, on January 15, 2009, AT &T, Wesley Helsley, Melissa Helsley -Hall, and Christy Lowrey/Dewberry submitted Conditional Use Permit Application Number 01 -09, requesting approval of a Conditional Use Permit (the "CUP "), pursuant to Frederick County Code § 165 -48.6, for a telecommunications tower facility, of 120 feet in height, on properties located at 2042 and 2060 Martinsburg Pike, Tax Parcel Numbers 43 -A -130 and 43 -A -132 (the "Properties "), in the Stonewall Magisterial District; WHEREAS, the Planning Commission held a public hearing on the CUP on March 18, 2008 and recommended approval of the CUP on April 15, 2009; WHEREAS, the Board of Supervisors held a public hearing on the CUP on May 13, 2009; WHEREAS, the Properties are in the Residential Performance (RP) Zoning District and are currently used for low - density residential purposes or low - intensity legally nonconforming commercial purposes; Frederick County Board of Supervisors Resolution Denying Conditional Use Permit Application Number 01 -09 May 13, 2009 Page 2 WHEREAS, the Board of Supervisors finds the requested use of the Properties for the requested telecommunications tower facility is not in conformance with the Comprehensive Plan, for the following reasons: • The Properties are located outside the County's Urban Development Area (the "UDA "), the UDA being an area that the County intends for more intensive forms of industrial, commercial, and residential development, and therefore the Properties are subject to protection from more intensive industrial, commercial, and residential development; • The Properties are located within the area encompassed by the County's Northeast Land Use Plan (the "NELUP ") component of the County's Comprehensive Plan and the NELUP encourages the preservation and protection of significant historic resources, environmentally sensitive areas, and open space areas within the area it encompasses; • The NELUP designates certain portions of the area it encompasses as a Developmentally Sensitive Area (the "DSA "), within and adjacent to which the Properties are located, the DSA being designated to ensure that its historic resources, areas of steep slopes and mature woodlands, existing residential clusters, and public land uses are protected from future development; • The Properties are located within the Stephensons Depot Civil War Battlefield historic site and proximate to the area of Third Winchester Civil War Battlefield historic site, the Hackwood property, and the Milburn Road corridor, all of which are sites of significant historic importance; • The NELUP further provides to ensure that the Historic Resources Advisory Board (the "HRAB ") reviews all development proposals which impact the DSA; • The HRAB has reviewed the requested use and indicated that the Properties are located in or proximate to one or more Civil War Battlefield historic sites and expressed concern about the visual impact of the requested telecommunications tower facility on such sites; and • The HRAB further noted that the home located at 2042 Martinsburg Pike was built in 1947 and that, as the structure is older than fifty years, the structure should be documented and a Department of Historic Resources survey conducted, as the structure may have value as part of the DSA; WHEREAS, the Virginia Department of Transportation has indicated that the existing private entrance to the Properties is inadequate and will require improvement; Frederick County Board of Supervisors Resolution Denying Conditional Use Permit Application Number 01 -09 May 13, 2009 Page 3 WHEREAS, the County has traditionally had a higher expectation for land use actions within and proximate to historic sites and the DSA, so that properties of significant historic value and scenic areas are not negatively impacted, the requested use does not satisfy that expectation; and WHEREAS, the applicant has not presented sufficient evidence of its efforts to locate or co- locate the requested use at a different location or of its need to locate the requested use at the Properties, as opposed to other properties; NOW, THEREFORE, BE IT RESOLVED that the Frederick County Board of Supervisors denies approval of Conditional Use Permit Application Number 01 -09, pursuant to Frederick County Code § 165 -48.6, for a telecommunications tower facility, of 120 feet in height, on properties located at 2042 and 2060 Martinsburg Pike, Tax Parcel Numbers 43 -A -130 and 43 -A- 132, in the Stonewall Magisterial District. Passed this 13th day of May, 2009 by the following recorded vote: This resolution was approved by the following recorded vote: Richard C. Shickle, Chairman Aye Gary A. Lofton Nay Gary W. Dove Aye Bill M. Ewing Aye Gene E. Fisher Nay Charles S. DeHaven, Jr. Aye Philip A. Lemieux Aye AC TT T J le , trederick County Administrator Res. #066 -09 CONDITIONAL USE PERMIT #01 -09 � AT &T AND WESLEY HELSLEY w Staff Report for the Board of Supervisors Prepared: April 27, 2009 ._ Staff Contact: Mark R. Cheran, Zoning Administrator This report is prepared by the Frederick County Planning Staff to provide information to the Planning Commission and the Board of Supervisors to assist them in making a decision on this request. It may also be useful to others interested in this zoning matter. Reviewed Planning Commission: 02/18/09 03/18/09 04/15/09 Board of Supervisors: 05/13/09 Action Postponed at Applicant's Request Tabled by PC for 28 days Recommended approval Pending EXECUTIVE SUMMARY: This is a request for a Conditional Use Permit to enable the construction of a 120 -foot commercial telecommunication facility. Staff would note that the applicant had initially sought a lattice tower on the site, but the Planning Commission determined that such a type of tower was inappropriate; if a Conditional Use Permit is granted for the use, the tower must be a monopole -type tower. County Code § 165- 48.6(B)(2). The County Code enables the Planning Commission to allow Lattice Type tower construction if the site is outside of the UDA, and not adjacent to historic sites. The Planning Commission determined that the site did not warrant lattice -type construction. The site is within and adjacent to the Developmentally Sensitive Area (DSA) designation for historic areas within the Northeast Land Use Plan (NELUP), which further discourages uses that distract from the historical nature of the area. Comprehensive Plan at 6 -117. After extensive discussion, the Planning Commission recommended approval of the Conditional Use Permit at their April 15, 2009 meeting, supporting the five conditions recommended by staff, and two additional conditions: (1) Only a monopole -type tower is to be constructed on this site; no lattice -type tower is permitted; and (2) The maximum diameter of any dish attached to the tower will not exceed ten feet. Any larger size dish would require the applicant to apply for a new conditional use permit. Should the Board of Supervisors find this use appropriate, Staff would suggest the following conditions be placed on the CUP: 1. All review agency comments and requirements shall be complied with at all times. 2. The tower shall be available for co- locating personal wireless services providers. 3. A minor site plan shall be approved by Frederick County prior to construction of the tower. Page 2 Conditional Use Permit 901 -09 AT &T and Wesley Helsley April 27, 2009 4. The tower shall be removed by the applicant or property owner within twelve (12) months of abandonment of operation. 5. In the event a telecommunications tower is not erected within twelve (12) months of the approval of this Conditional Use Permit, the CUP will be deemed invalid. 6. Only a monopole -type tower is to be constructed on this site; no lattice -type tower is permitted. 7. The maximum diameter of any dish attached to the tower will not exceed ten feet. Any larger size dish would require the applicant to apply for a new conditional use permit. LOCATION This property is located at 2042 Martinsburg Pike (Route 11). MAGISTERIAL DISTRICT Stonewall PROPERTY ID NUMBERS 43 -A -130 and 43 -A -132 PROPERTY ZONING & PRESENT USE Zoned: RP (Residential Performance) Zoning District Land Use: Residential ADJOINING PROPERTY ZONING & USE North: RP (Residential Performance) Land Use: Residential South: RP (Residential Performance) Land Use: Church East: RP (Residential Performance) Land Use: Residential West: RP (Residential Performance) Land Use: Residential PROPOSED USE This application is for a 120 -foot Commercial Telecommunications Facility. REVIEW EVALUATIONS Page 3 Conditional Use Permit #01 -09 AT &T and Wesley Helsley April 27, 2009 Virginia Department of Transportation: Existing private entrance is inadequate for proposed use. Therefore, we cannot support a conditional use permit for this property until the existing entrance is improved to meet VDOT Standards. Any work performed on the State's right -of- way must be covered under a land use permit. The permit is issued by this office and requires an inspection fee and surety bond coverage. Fire and Rescue: Plan approval recommended. Inspections Department: Structure shall comply with The Virginia Uniform Statewide Building Code and Section 312, use group U (Utility and Miscellaneous) of The International Building Code 2003. The structure is required to comply with Chap 15 & 16 of the IBC 2006 for structural load, as well as Section 3108 for Towers. The tower shall be located and equipped with step bolts and ladders so as to provide ready access for inspection purposes. The tower shall not cross or encroach upon any street or other public space, or encroach upon any privately owned property without written consent of the owner of the encroached -upon property. (See 3108.2, Location and Access.) Special instructions per Chap 17 IBC 2006 apply to this structure. Plans submitted for review shall be sealed by a Virginia Registered Design Professional. Winchester Regional Airport: In accordance with the Code of Virginia, Section 15.2 -2294, and the Federal Aviation Administration Notice of Proposed Construction, FAA Form 7460 -1, application is required to be filed with the Federal Aviation Administration with a copy forwarded to this office for review and comment. Upon completion of the aeronautical study by the FAA, a copy must be forwarded to this office for final review comment. Any temporary construction equipment exceeding the overall height of the proposed structure including all appurtenances will require filing of a separate 7460 -1 form with the FAA before construction begins and requires a separate review by the Airport Authority. Applicant is required to file with the Virginia Department of Aviation. Applicant should send a copy of the FAA 7460 -1 form and a quadrangle map showing the proposed tower location. Final comment on behalf of the Airport Authority will be withheld pending a review of the Determination Study . completed by the Federal Aviation Administration and comments from the Virginia Department of Aviation. Historic Resources Advisory Board: The Study_ of Civil War Sites in the Shenandoah Valley, published by the National Park Service, shows that this site is located in the core area of the Second Battle of Winchester and the study area of Third Winchester. While this property is located within an area identified as having lost integrity, the area directly behind this site is identified as core area for the Second Battle of Winchester that has retained its integrity. The Northeast Land Use Plan of the Frederick County Comprehensive Policy Plan shows the area where this proposed telecommunications tower is located as a Developmentally Sensitive Page 4 Conditional Use Permit #01 -09 AT &T and Wesley Helsley April 27, 2009 Area (DSA). The DSA designation is meant to ensure that historical features, as well as existing residential clusters, are protected from future development proposals. In addition to these concerns, the HRAB noted that the home located at 2042 Martinsburg Pike was built in 1947. As it is older than fifty years in age, the structure should be documented and a DHR survey should be completed. HRAB members also discussed the home's value as a part of the DSA. Ultimately, the HRAB was concerned about the visual impact of the tower on the core battlefield area and felt that the tower, which is proposed to serve the FEMA development across the street, should be located on the roof of the FEMA building or on the FEMA site. It was the Board's expressed priority that the applicants first make a serious and genuine effort to locate the tower on the FEMA site where existing trees and development would make the tower less visible from the battlefield. Planning and Zoning: Comprehensive Policy Plan: The 2007 Comprehensive Policy Plan of Frederick County ( "Comprehensive Plan") provides guidance when considering land use actions. This proposed commercial telecommunication facility is located within the Northeast Land Use Plan (NELUP) as indicated in the Comprehensive Policy Plan of Frederick County. Comprehensive Plan at 6 -117. The NELUP component of the Comprehensive Policy Plan identifies Developmentally Sensitive Areas (DSA) as including and surrounding this site. Id. The objectives of NELUP, as related to Developmentally Sensitive Areas, include identifying appropriate locations to protect potentially significant historic resources as identified by the Frederick County Rural Landmarks Survey, and to ensure the Historic Resources Advisory Board (HRAB) reviews all land development proposals which impact the identified DSA. Comprehensive Plan at 6 -111. The general surrounding area of this proposed site contains sites of significant historical importance which include the Hackwood property, established residential areas, and the Milburn Road corridor. The Hackwood property and the Milburn Road corridor are less than 1 1/2 miles from this proposed commercial telecommunication facility. Furthermore, the subject property where this proposed commercial telecommunication facility will be located is within the Stephenson Depot Civil War Battlefield historic site, and adjacent to the study area of Third Battle of Winchester. Comprehensive Plan at 2 -12 and 2 -13. Frederick County has traditionally set a higher expectation for land use actions with regard to properties in and/or located adjacent to DSA's. These performance standards are to ensure that scenic areas and properties of significant historic values are not negatively impacted. Staff would note this CUP may not be consistent with the goals of the 2007 Frederick County Comprehensive Policy Plan specifically land use goals identified and established by the Northeast Land Use Plan (NELUP). Careful consideration of this Conditional Use Permit may be warranted in maintaining the goals set forth Page 5 Conditional Use Permit #01 -09 AT &T and Wesley Helsley April 27, 2009 in the NELUP plan. Zoning Ordinance: The Frederick County Zoning Ordinance allows for commercial telecommunication facilities in the RP (Residential Performance) Zoning District with an approved Conditional Use Permit (CUP). County Code § 165 -48.6. The zoning ordinance requires that all proposed telecommunication facilities shall he of a monopole type if located adjacent to identified historic sites. County Code § 165- 48.6(B)(2). Commercial telecommunication facilities may be subject to additional performance standards in order to promote orderly economic development and mitigate the negative impacts to adjoining properties. County Code § 165- 48.6(B). The Frederick County Zoning Ordinance requires an applicant to provide confirmation that an attempt to collocate on an existing telecommunication facility, and possible co- location structures, in the proposed service area was made. County Code § 165- 48.6(A). The applicant has provided an inventory of existing telecommunication facilities and possible co- location structures in this area, but did not produce adequate documentation that those existing facilities were unsuitable for the proposed use. This proposed telecommunication facility will be positioned on property located in close vicinity - of the 150 acre industrially and commercially zoned Rutherford Farm development, the development of which includes a multistory office building and commercial center. This development, for example, may provide satisfactory coverage instead for this applicant and future co- location opportunities in this area of Frederick County. SUMMARY FROM THE 02/18/09 PLANNING COMMISSION MEETING The applicant requested that the item be postponed/removed from the Planning Commission's 2/18/09 agenda; this request was honored. STAFF CONCLUSIONS FOR THE 03/18/09 PLANNING COMMISSION MEETING This is a request to seek approval for the construction of a 120 -foot lattice type commercial telecommunication facility. Staff would note that the proposed site does not qualify for a lattice -type facility; as such, if a CUP for this site is granted and if the site does not qualify for a lattice -type facility, the CUP is required to be for monopole -type construction. Additionally, the site is within the Developmentally Sensitive Area (DSA) designation for historic areas within the Northeast Land Use Plan ( NELUP) area, which designation further discourages uses that distract from the historical nature of the area. Should the Planning Commission find this use appropriate, Staff would suggest the following Page 6 Conditional Use Permit 901 -09 AT &T and Wesley Helsley April 27, 2009 conditions be placed on the CUP: 1. All review agency comments and requirements shall be complied with at all times. 2. The tower shall be available for co- locating personal wireless services providers. 3. A minor site plan shall be approved by Frederick County. 4. The tower shall be removed by the applicant or property owner within twelve (12) months of abandonment of operation. 5. In the event a telecommunications tower is not erected within twelve (12) months of the approval of this Conditional Use Permit, the CUP will be deemed invalid. PLANNING COMMISSION SUMMARY AND ACTION OF THE 03/18/09 MEETING Mr. Stephen L. Pettler, Jr., attorney with the law firm, Harrison & Johnston, was representing the applicants in this request. Mr. Pettler said the applicants are pursuing the lattice -type tower because the proposed site is located outside the UDA and the site is not "adjacent" to an identified historic site; future Route 37 will cut the proposed site off from battlefield areas; a much larger structure would be constructed and the cost of construction would be greater for a monopole versus a 10'X10' lattice -type tower; and it may be cost - prohibitive for EMS or other future users to co- locate on a monopole structure. Mr. Pettler also addressed the DSA and NELUP issues and stated that the Route 11 corridor is slated for future commercial development and already has significant existing commercial development. Responding to the suggestion of locating the tower in the Rutherford's Farm development or on the FEMA building, Mr. Pettler noted that neither AT &T nor FEMA owns property within Rutherford's Farm or the FEMA building. He pointed out that considerable structural changes to the building would be needed and numerous third -party issues were encountered. Mr. Robert R. Ericksen, real estate manager with AT &T, said the proposed tower location, adjacent to AT &T's existing communications building at 2032 Martinsburg Pike, was preferred because of the existence of a network access point (POP) and a 180- degree fall zone is not required because the property is owned by the tower owner and the existing building is un- manned. Mr. Ericksen explained that because of the structural improvements necessary and structural integrity issues, in addition to liability and legal issues involving a third party, a stalemate in negotiations was encountered in their attempts at placing the communications facility on top of the FEMA building. One citizen, a resident on Martinsburg Pike, came forward to speak during the public comment Page 7 Conditional Use Permit #01 -09 AT &T and Wesley Helsley April 27, 2009 portion of the hearing. This citizen inquired if the tower would fall on Route 11 if it happened to collapse. Members of the Planning Commission were varied in their opinions about whether a monopole tower or a lattice -type tower was more visually objectionable to the viewshed. Members of the Commission believed the proposed site was not appropriate because of the available commercial and industrially -zoned property across the street within the Rutherford Farm development and because the HRAB's recommendation that the tower would create a negative visual impact to the historic areas. It was noted that portions of the Rutherford development were outside of the UDA and the HRAB's report had indicated that historical integrity on that side of Route 11 had already been lost. Other Commissioners remarked there had been no public opposition and the applicant had made serious and genuine efforts to locate on the FEN/1A property and it was not feasible or practical. Members also noted that the proposed tower location was within a commercial and industrial area and, in addition, the area is slated for a future four -lane interstate highway. A motion to recommend denial was made and seconded, but failed by the following majority vote: YES (TO DENY) Ours, Thomas, Oates, Ruckman NO: Mohn, Kerr, Triplett, Manuel, Ambrogi, Unger, Wilmot ABSTAIN Watt A new motion to table the CUP for 28 days was made, seconded, and passed by a majority vote, to give the applicant the opportunity to revise the application, suggesting a monopole -type tower located closer to the FEMA building where trees and buildings could visually shelter the tower and where it would not impact the viewshed of historic battlefields. The majority vote to table was: YES (TABLE 28 DAYS) Ambrogi, Manuel, Ruckman, Oates, Thomas, Ours, Wilmot NO: Unger, Triplett, Kerr, Mohn ABSTAIN: Watt (Note: Commissioner Kriz was absent from this meeting.) No changes were made to the application following the Planning Commission meeting on 3/18/09. Page 8 Conditional Use Permit #01 -09 AT &T and Wesley Helsley April 27, 2009 PLANNING COMMISSION SUMMARY & ACTION OF THE 4/15/09 MEETING Mr. Stephen L. Pettler, Jr. and others were representing the applicant. Mr. Pettler believed the proposed location was not technically adjacent to a designated historical site and, therefore, could be granted a waiver for a tower with lattice -type construction. In addition, he said the proposed location was outside of the UDA in an area slated for commercial and industrial development by the County. Regarding the view shed impact, he said the future path of Route 37, which is anticipated to be 35 feet in height, will be interposed between any viewpoints from the Milburn corridor, essentially screening the tower from the battlefields area. Addressing the issue of placing the tower on top of the FEMA building, Mr. Pettler said this would involve reinforcement of the building and roof penetration and the landlord, Cowperwood, was not interested in altering their structure. Furthermore, an adequate fall zone could not be achieved on the Cowperwood property. As far as other available land in the Rutherford's Farm development, Mr. Pettler said there were significant issues in trying to locate a tower on property without a site plan attached because it restricted the owner's ability to place a user on the property in the future. It was also pointed out that a lattice -type structure is the industry standard to secure this type of antenna and would easily accommodate other providers, if it was the County's desire to do so. Mr. Pettler said the applicant prefers to construct a lattice -type structure; however, the applicant would be willing to accept the condition that only a monopole- type tower can be constructed as part of the approved CUP. Planning Commission members were mixed in their opinion of which tower type, monopole or lattice, was visually preferable and which would have less an impact on the landscape. Because the lattice -type tower can more easily accommodate additional providers, and subsequently cause the tower to be more visually obvious, some Commissioners favored placing a condition on the permit that no other providers, except FEMA and emergency services, would be allowed on the tower. Other Commission members said they would prefer to allow co- location of other providers, thereby eliminating the future construction of additional towers in the area. Commission members believed this was a precedent- setting action because of ordinance requirements prohibiting lattice towers in certain locations. The Planning Staff noted the ordinance does not require co- location; however, it has been the County's policy and each time a CUP is issued for a tower, a condition is included stipulating the tower must be available for co- location. Other Commission members said they were not so much concerned about whether this would be a lattice or monopole tower, but whether or not a tower was appropriate at this location. The tower would be more appropriately sited in a commercial and industrial area, as opposed to adjacent to existing residents and historic sites. Referring to the applicant's comment that a lattice structure is more stable than a monopole, Commission members with engineering experience stated that a monopole can be designed to be Page 9 Conditional Use Pen #01 -09 AT &T and Wesley Helsley April 27, 2009 rigid enough to meet desired needs, but the lattice tower is more economical to build. They also noted there are other ways to receive the telecommunications besides a tower constructed at this location, such as installing fiber optic cable to a location outside the area and making a line of sight microwave shot to the destination. In addition, other commercial telecommunication facilities providers could possibly provide FEMA with the service needed from a different location. When the applicant was asked if other users, other than FEMA, had committed to use the facility, the applicant noted that FEMA had not entered into contract to use the tower. Commission members expressed concern about the increase in the diameter size of the dishes from the previous meeting. The application package noted that a 6 -foot diameter microwave dish was sought; during the Planning Commission meeting, the applicant discussed that the tower was necessary to accommodate a 10 -foot dish. The Commission questioned the applicant's investigation of any available properties in the Rutherford's Farm development or some of the wetlands areas. A member of the Commission asked the staff if this location was inappropriate for a tower or is it simply an inappropriate place for a lattice -type tower. Staff replied this was an inappropriate location for a lattice -type tower. A member of the Commission asked if the applicant would agree to forego a lattice -type tower and agree to a condition to construct only a monopole -type tower; the applicant concurred. There were no citizen comments made during the public comment portion of the hearing. A motion was made and seconded to deny the conditional use permit. This motion failed by the following tie vote: YES (TO DENY) Unger, Watt, Ruckman, Oates, Thomas, Kriz NO: Ambrogi, Madagan, Triplett, Kerr, Mohn, Wilmot A new motion was made, seconded, and passed by a majority vote, to approve the CUP with the five conditions recommended by the staff plus two additional conditions, as follows: All review agency comments and requirements shall be complied with at all times. 2. The tower shall be available for co- locating personal wireless service providers. A minor site plan shall be approved by Frederick County. 4. The tower shall be removed by the applicant or property owner within 12 months of abandonment of operation. In the event a telecommunications tower is not erected within 12 months of the approval Page 10 Conditional Use Permit #01 -09 AT &T and Wesley Helsley April 27, 2009 of this conditional use permit, the permit will be deemed invalid. 6. Only a monopole -type tower is to be constructed on this site; no lattice -type tower is permitted. 7. The maximum diameter of anv dish attached to the tower will not exceed ten feet. Any larger size dish would require the applicant to apply for a new conditional use permit. The majority vote was as follows: YES (APPROVE) Mohn, Kerr, Triplett, Madagan, Thomas, Wilmot, Ambrogi NO: Kriz, Oates, Ruckman, Watt, Unger (Note: Commissioner Manuel was absent from the meeting.) LL O O LO o 0 N N O 13 Silbmittal Deadline P/C Meeting BOS Meeting APPLICATION FOR CONDITIONAL USE PERMIT FREDERICK COUNTY, VIRGINIA Apo owner o t he r) 1,Lc.An ant the �The applicant NAME: C teh5r �ay AVEWO&A=1 ADDRESS: LQ-03 TELEPHONE zze_.5 guff, 001'i 6�1 7-63- 94-4) - � 9 74) 2. -Please list all owners, occupants (adult individuals as % as any entities occupying the p-roperty), or parties in --he interest of the property: AT,4 WesLr--y �4r-l-gl-ev 051,144 --J 46_Fj6e!�_4 t�Y�Ifj&e 3. The property Is iocated at: (plicase give exact directions and include the -route nurriber of your road or street) A P 1 ___ff Vall G 4 The property has a road f rontage of feet and a depth of feet and ac=es k 'P be exact) .L .51 The property is owned by A T4 Wmay qo� evidenced by deed from recorded 4u) V (previous owner) in deed book no. on page , as recorded in the records of the Clerk of the Circuit Court, County of Frederick, N Tax(Parcel)Identification (I P_" ) o. Magisterial District 5 Current Zoning 43-A-150 -Argtr, la5T. OS0006oF4 Actjoinhig USE ZONING East South al, IJKC The type of use proposed is (consult with the Planning Dept. before completing) 9. It is proposed that the following buildings will be constructed: 10 The following are all of the individuals, f ruts- or eorporatiojis owrting property adjacent CN to both sides and rear Mid in front of (across street from) (lie property where the requested use will be cmnducted. (Continue on back il`occessary.) 'l`itese people will he notified by mail of this applicat olt: WWC -14e5 )e, VA PROPrRTY ID O - VA T?TtQI'TRT i' tT) - 1 Z5 `tv NAME AD DRESS PROPERTY ID4 NAME bRESS PROPERTY T ROPERTY 1134_ � � 11VO E 7 ' A NAME ADDRESS PROPERTY Ir3f Please use this page for your sketch of the property. Show proposed and /or existing smictures on the property, including measurements to all property litres. 55E /97-T/140/4E/D 11 Additional comments. if any: tj MEW I (we), the undersigned, do hereby respectfully retake a plication. and petition the Yommin I p g � g body of Frederick County, Virginia to allow the use described in this application. I understand that the sigil issued to me when this application is submitted must be placed at the front propertyline at least seven (7) days prior to the first public hearing and maintained so as to be visible until after the Board of Supervisors' public hearing. Your application for a Conditional Use Permit authorins any member of the Frederick County Planning Commission, Board of Sulimisors or Planning and Development DepaAment to inspect your property where the proposed use will be cmducted. Signature of Applican m Signature of 0 9 7 10) Owners'Mailing Add Owners''relcphone No. '?C2 ;Z - 3 4 — TO BE CQMPLEL BY THE ZONING ADMINISIRRATOR, USE CODE. RENEWAL DATE: Special Limited Power of Attorney County of Frederick, Virginia Frederick Planning Web Site: wivw.co.frederick.va.us Department of Planning & Development, County of Frederick, Virginia, 107 North Kent Street, Suite 202 Winchester, Virginia 22601 Facsimile 540 -665 -6395 Phone 540- 665 -5651 I I Know All MMe�en By Those Present: That I (We) (Name) /CGS f t?�r I q r'1c L&oj )C- 1q (Phone) (Address) }ham �i �/ Ct1� �� %! /5i1 erX�ns✓� se,_ , ,�i °ci 071.2 the owner(s) of all those tracts or parcels of land ("Property") conveyed to me (us), by deed recorded in the Clerk's Office of the Circuit Court of the County of Frederick, Virginia, by 5e-& a ftmcliek %kd?,� 1 /3 4 Instrument No. on Page , and is described as , 4w-e- - / A Parcel: Lot: Block: Section: Subdivision: do hereby make, constitute and appoint: (Name) (Phone) 70.3 6i�O /15 / (Address) �7 G3 �� d s �l�H 1 iV l er .Lu •tj VA To act as my true and lawful attorney-in-tact for ind in my (our) name, place, and stead with full power and authority I (we) would have if acting personally to file planning applications for my (our) above described Property, including: Rezoning (including proffers) Conditional Use Permit Master Development Plan (Preliminary and Final) Subdivision Site Plan Variance or Appeal Comprehensive Policy Plan Amendment My attorney -in -fact shall have the authority to offer proffered conditions and to make amendments to previously approved proffered conditions except as follows: This authorization shall expire one year from the day it is signed, or until it is otherwise rescinded or modified. In witness thereof, I (we) have hereto set my (our) hand and seal this —U day of -c r , 200 r t, Signature(s) State of /t/ iT , City/County of Vt n t C y\- , To -wit: 1, G r o r ' ,� D o 4- a Notary Public in and for the jurisdiction aforesaid, c ify t at the person(s) who signed to the foregoing instrument personally appeared before nee and has acknowledged the same before me in the jurisdiction aforesaid this aQ day of 1� r 200 r . G" Dultommission Expires: _ G' 1 0� Not a i)y PPu li PU*Of Revised 3/17/08 ' "i "�1 my {►{1MNftion Exph" l 4 C� Special Limited Power of Attorney County of Frederick, Virginia Frederick Planning Web Site: wwrv.co.frederick.va.us Department of Planning & Development, County of Frederick, Virginia, 107 North Kent Street, Suite 202 Winchester, Virginia 22601 Facsimile 540- 665 -6395 Phone 540 - 665 -5651 Know All Men By Those Present: That I (We) (Name) y / (Phone) ��4-C `3,2 7— 41 (Address) �� UL� e �� I' �� ()IQ MM(_ � / _e 1A the owner(s) of all those tracts or parcels of land ( "Property") conveyed to me (us), by deed recorded in the Clerk's Office of the Circuit Court of the County of Frederick, Virginia, by Instrument No. 0500 Z& 77S on Page , and is described as Parcel' Lot: i -3'Z- Block: Section: Subdivision: do hereby make, constitute and appoint: (Name) UgC / ST j - LCD t� �� l (Phone) (Address) j �JU (� �y��'� l J f l� /1� Y t 1 /� C. J G�/ �0 ! JO 7�,-� To act as my true and lawful attorney -in -fact for and in my (our) name, place, and stead with full power and authority I (we) would have if acting personally to file planning applications for my (our) above described Property, including: Rezoning (including proffers) Conditional Use Permit _ Master Development Plan (Preliminary and Final) _ Subdivision _ Site Plan Variance or Appeal Comprehensive Policy Plan Amendment My attorney -in -fact shall have the authority to offer proffered conditions and to make amendments to previously approved proffered conditions except as follows: This authorization shall expire one year from the day it is signed, or until it is otherwise rescinded or modified. j /iK In witness thereof, I (wo have hereto set mK(ouQ hand and seal this I ( day of eaesnku , 200 e) , Signature(s) State of Virginia, C- ity /Cou ty of FT'C� C. K_ , To -wit: 1, 1 _. S. 6 , a Notary Public in and for the jurisdiction aforesaid, certify that the p on(s) who si ed to the foregoing instrument personally appeared before me a me before me in th jurisdiction aforesaid this day of l7t, V. 4 200 Fj . My Commission Expires: �3t�2ott7 Nota Public Revised 3/17/08 O D STANLEY NTAW fARY ID # 184168 NOTARY PUBLIC COMMONWEALTH OF VIRGINIA [ My COMMISSION EXPIRES JULY 31.2010 I IV- at &t December 30, 2008 County of Frederick Winchester, VA Robert R. Ericksen, PE, CCIM T: 908 234 -8819 One AT &T Way e-mail: rericksen@att.com Room 1A1 13A Bedminster, NJ 07921 Re: Statement of need for data transmission mast in Winchester, VA. Dear Officials of Frederick County: AT &T is requesting permission to construct a 120' free standing class 3 galvanized steel lattice tower in support a of a long haul line sight radio communications route. The tower design will support the radio route, plus have cellular and first responder capabilities. The required site for this communications tower is adjacent to AT &T's existing communications building at 2032 Martinsburg Pike, Winchester, VA. AT &T has chosen this location because of the existence of a network access point (POP). Construction of this route will primarily serve our federal customers location at Mt. Weather, VA in support of mission critical customer network applications. AT &T contracted with Comsearch to survey existing structures within a one mile radius of our required access point and evaluate the ability of these structures to support 6 foot diameter and 5 foot diameter microwave dishes. This survey report is included with our application package. None of the existing structures can support these dishes at the required height. Due to the size and weight of the microwave dish antennas, a lattice tower is deemed the best means of support at this tower height. Monopole tower requirements would be of unusually large diameter (6'±) and would be a stronger impact visually than lattice. The applicant requests consideration of this factor, in the request to locate the tower on their site AT &T intends to continuously use the facility and tower. AT &T shall be responsible for removal within 90 days of receipt of notice from the Frederick County Department of Planning and Development. Removal includes the removal of the tower, all tower and fence footers, underground cables and support buildings. If the tower is not removed within the ninety -day period, the County will remove the facility and a lien may be placed to recover expenses. Sincerely, AT &T Corp Y: Name: Robert R. Ericksen '09 AIW 19700 Janelia Farms Blvd Ashburn, VA 20147 CO MSEA R CH- 703- 726 -5500 Analysis of Communication Towers in the Vicinity of the Proposed AT &T Corporation Microwave Tower in Winchester, Virginia Comsearch was contracted by AT &T Corporation to identify all commercial communication facilities within a 1.0 mile search radius of their proposed 120' height telecommunications tower to be located at an existing AT &T facility on Route 11, Martinsburg Pike, in Winchester, Virginia. The purpose of this study is to provide the analysis required by the local Zoning Ordinances to obtain a Conditional Use Permit for the proposed telecommunication tower. Comsearch performed a database search from multiple sources including the Federal Communication Commission (FCC) Universal Licensing System (ULS) and Antenna Structure Registration (ASR), a database of the top ten tower owners in the United States, and the Comsearch databases of all microwave and land mobile radio (LMR) commercial telecommunications systems licensed for operation in the United States. The database search determined that there were 4 commercial communication facilities registered within a 1.0 mile radius of the proposed AT &T tower. Table 1 identifies the communication facilities and lists their pertinent parameters including service, frequency band, FCC Call Sign, latitude and longitude, antenna height and licensee. Figure 1 shows the location of these communication facilities with respect to the proposed AT &T tower. Table 1 Commercial Communication Facilities within 1.0 Mile of the Proposed AT &T Tower Frequency FCC Call Antenna ID Service Band Sin Latitude Longitude Height m Licensee 1 Land Mobile 152 MHz KNGB739 39 -12 -58 78 -08 -28 24 A E JOHNSON INC Microwave 2 Site 956 MHz WEF653 39 -13 -20 78 -07 -57 9.14 H H OMPS, INC SHIRLEY WELL 3 Land Mobile 31 MHz WNGE496 39 -14 -00 78 -06 -57 29 DRILLING INC 460 -470 4 Land Mobile MHz WPFR957 39 -12 -45 78 -08 -29 23 PACTIV CORP Figure 1 Commercial Communication Facilities in Database within 1.0 Mile of the Proposed AT &T Tower In addition to the database search identified above, Comsearch also performed a physical site visit to document the identified communication facilities and to determine if any other commercial communication facilities are present that were not identified in the database search. The on -site evaluation also focused on the area within a 1.0 mile search radius of the proposed AT &T facility. The results of the on -site physical visit are contained in Figures 2 — 5 for the database identified facilities. Figures 6 and 7 provide documentation for two additional facilities determined during the on -site visit and Figure 8 indicates the location of these additional communication facilities with respect to the proposed AT &T tower.. Notes are provided with each figure identifying the type of tower and a determination concerning the viability of the existing facility to support the proposed AT &T communication requirements. This determination is based on a number of criteria including 1) the ability of the tower to adequately support the proposed 6' microwave antenna, 2) the sufficient height of the existing tower to support the planned AT &T microwave link, and 3) proximity to the AT &T facility where the required communication must terminate. The results of this analysis determined that there are no existing commercial communications facilities present within a 1.0 mile radius of the proposed AT &T 120' height tower that will support the requirements of AT &T. The proposed AT &T tower is required to support a highly reliable point -to -point microwave path between the AT &T facility and a location on Mount Weather, which is in excess of 16 miles away in a direction of approximately 132 degrees from true north. The proposed tower will be required to support at minimum a 6' solid parabolic antenna. None of the identified existing communication facilities will meet the stringent requirements of AT &T. E 1� View from Martinsburg Pike F •�N {a • l � s„ - rte ,,3. A'4 Alf + - a 3 a ,e View from building facing no 'i'•a- _shy - K.W j OAI s L- do _ y 4. View facin_� . A, \\ 2 »f - ' �. %.\ . /- , \ 1 Site: ID 1 Coordinates: 39° 13' 0.4" N, 78° 8' 28.4" W Tower Height: 64' AGL Guyed Owner /Licensee: AE Johnson, Inc. Notes: This site is located behind an Exxon gas station at the intersection of US- 11 and Welltown Road. This tower will not support the proposed AT &T microwave antenna requirements. Figure 2 — Database Site ID 1 Site: ID 2 Coordinates: 39° 13' 20.4" N, 78" 7' 57" W Tower Height: N/A Owner /Licensee: HH Omps, Inc. Notes: No tower or communication facilities are at this location. It is assumed that the facility has been deactivated and is no longer in operation. Figure 3 — Database Site ID 2 Site: ID 3 Coordinates: 39 13' 59.1" N, 78 6' 59.0" W Tower Height: 105' AGL Guyed Owner /Licensee: Shirley Well Drilling Notes: This site is located behind Shirley Well Drilling Company off of US -11. This facility will not support the proposed AT &T microwave antenna requirements. Figure 4 — Database Site ID 3 Site: ID 4 Coordinates: 39 12'45.4" N, 78 W Tower Height: N/A Owner /Licensee: Pactiv Corp. Notes: Site coordinates are located within private property of Pactiv Corporation behind loading dock located southeast of main entrance. No tower is present at this location and this facility will not support the proposed AT &T microwave antenna requirements. Figure 5 — Database Site ID 4 Site: Power Line Cellular Array Coordinates: 39° 13' 6.4" N, 78° 8' 25.2" W Tower Height: 125' AGL Owner /Licensee: Unknown Notes: This is a cellular base station site positioned on a high power transmission pole located at the end of Mercedes Drive in Winchester, VA. This facility will not support the proposed AT &T microwave antenna requirements. Figure 6 — Additional Telecommunication Facility Found During Site Visit Site: Land Mobile Antenna Coordinates: 39 13'59.1" N, 78 7'38.6" W Tower Height: 110' AGL self support Owner /Licensee: Unknown Notes: Site is located behind Agri Court in Winchester, VA. This facility will not support the proposed AT &T microwave antenna requirements. Figure 7 — Additional Telecommunication Facility Found During Site Visit Figure 8 Additional Commercial Communication Facilities Identified in On -Site Visit Within 1.0 Mile of the Proposed AT &T Tower Year Civil War Battlefields 1 1862 First Winchester 2 1862 Fu Kemstown 3 1863 Stephensons Depot C ivi l 4 1863 Second Winchester �� 5 1864 Third Winchester i 6 1864 Third Winchester � f �. I 1 I l + �✓ 7 1864 Cedar Creek Battlefields 8 1864 Third Winchester 9 1864 Second Kemstown And Sites (Fortifications) r j S ite s 10 parkins Mill Battery J f 11 1864 Winter Line ;' i '( - / o-� (As Defined by the NIPS 12 Carriesbrooke Redoubt j �/ ( Shenandoah Valley 13 Hillandale Works �' �.\ ` ;` /' Civil War Sites Study) 14 19th Corps Entrenchments 15 Star Fort - Fort Collier 17 Zig -Zag Trenches t [f] Civil War Sites '- Civil War Battlefields ,GK CpG Frederick County Comprehensive Plan Map Frederick County Dept of Planning & Development p 107 N Kent St, Winchester, Virginia 22601 W WWW.CO.FREDERICK.VA.US 540- 665 -5651 August 22, 2007 i i � f �. I 1 I l + �✓ o �� 1 4 �� _ A Winches \ / 12 rf�113 10 ` elz \02 14 0 0.5 1 2 3 4 5 6 I I 1 I I I I Miles ,GK CpG Frederick County Comprehensive Plan Map Frederick County Dept of Planning & Development p 107 N Kent St, Winchester, Virginia 22601 W WWW.CO.FREDERICK.VA.US 540- 665 -5651 August 22, 2007 History The Plan describes strategies to achieve the goals including: • Providing information, assistance, and incentives to landowners • Preparing resource management plans for specific sites • Recommendations concerning local punning decisions • Establishment of an "umbrella battlefield organization" to carry out actions described • Local government assistance and state and_ federal involvement • Establishing a prinza7y interpretative center • A coordinated sign system for tour routes • Conducting special events for public awareness • Contact and coordination with various interested individuals and groups in addition to the key sites at Cedar Creek, Kernstown, Third Winchester /Opequon, and Old Town Winchester, a number of other sites are included in the strategies including: • Star Fort and other forts • Stephenson Depot • National and Stonewall Cemeteries • Bowers Hill • Ruthersford Farm • Berryville Canyon • Sheridan's Hospital • 1864 Winter Line The Plan contains a Battlefield Action Plan that describes the specific actions that will need to be undertaken to achieve the goals of the plan. Frederick County 2-13 2007 Comprehensive Plan 21 South LOUdOUn Street Winchester, Virginia 22601 P.O. Box 809 Winchester, Virginia 22604 Telephone 540.667.1266 March 12, 2009 VIA EMAIL AND REGULAR MAIL Mr. Charles Triplett 150 Lone Willow Lane Gore, VA 22637 Stephen L Pettler, Jr. Facsimile 540.667.1312 pettler aharrison- johnston.com Mobile 540.664.5134 In Re: AT &T Corporation; Microwave Data Transmission Mast, Conditional Use Permit Application #01 -09 Dear Mr. Triplett: As you may know, I represent AT &T Corporation regarding the above referenced Conditional Use Permit Application scheduled for hearing before the Frederick County Planning Commission on March 18, 2009. Attached please find a letter to you from David Lopez, Acting Branch Chief, FEMA IT Operations relating to the application which FEMA has asked me to forward to you for your consideration. Beside forwarding you the letter from FEMA, I wanted to advise the members of the Planning Commission that we have asked Frederick County staff repeatedly over the last month, by email correspondence and telephone, to identify any adjacent historic sites to the applicant's location and we have not received a response. We asked for this as the staff report regarding this application indicates that a monopole type mast must be constructed on the property, but we find no mandate for this under the Frederick County ordinances unless the property is located adjacent to a historic site. Our review of the county maps does not indicate the property to be located adjacent to a historic site and AT &T's engineer for this application, Christy Lowery of Dewberry, even met with Frederick County staff to review maps with Ms. Perkins and was unable to identify any historic site adjacent to the property. In our opinion a monopole type structure is not required for this location. In addition, attached you will also find computer generated photo renditions of a monopole structure necessary to hold the microwave transmission dishes to compare with the lattice structure requested for use in the instant permit application. You will quickly note that the monopole structure must be immense in order to hold the dishes necessary to deliver the data service for FEMA. We do not believe the County intended that monopole structures of this size would be mandated anywhere in the county, and respectfully suggest that the lattice structure is the best structure for a data transmission mast of the type requested by AT &T. Mr. Triplett Page 2 March 12, 2009 If you have any questions in any regard about his application before the hearing on March 18, 2009, please feel free to contact me. Otherwise we believe we have addressed all concerns raised in the staff report through this correspondence and past correspondence in this matter. We look forward to seeing you at the hearing on March 18` With kind regards, I am Very truly yours, L. Pettle , Jr. cc: AT &T Corporation Eric Lawrence, Director of Planning U.S. Department of homeland Security Washington, DC 20472 March 11, 2009 The Honorable Charles E. Triplett Gainesboro Magisterial District 150 Lone Willow Lane Gore, Virginia 22637 Ref (A): Microwave Tower Dear Mr. Triplett: In support of ref (A), I strongly encourage the Board to honor the request to erect a microwave transmission mast at 2032 Martinsburg Pike in Frederick County, Winchester, VA. This communications link is critically important to FEMA's operations in Frederick County. In order to support our mission critical activities, it is essential to have fail -safe communications capability, particularly when disasters occur. A microwave mast is an integral component of our operations in Frederick County. The mast can be utilized to provide communications capabilities necessary to fulfill our mission and responsibilities. While we do not endorse one service provider over another, we desire to move forward expeditiously to make microwave services available and encourage the Planning Commission and Board of Supervisors to look favorably on this request. Sincewly, l -s vid Looez. Ac�tik)Branch Chief FEMA IT Operations CC: Eric R. Lawrence, Director of Planning �c�,�c Icntii sn`+ 21 South Loudoun Street Winchester, Virginia 22601 P.O. Box 809 Winchester, Virginia 22604 Telephone 540.667.1266 April 11, 2009 VIA EMAIL June Wilmot, Chairman Roger Thomas, Vice Chairman Members: Cordell Watt, Greg Unger, George Kriz, Charles Triplett, Rick Ours, Gregory Kerr, Christopher Mohn, Lawrence Ambrogi, H. Paige Mannuel, Gary Oates, Richard Ruckman, and Gary Lofton Frederick County Planning Commission 107 N. Kent Street Winchester, VA 22601 In Re: AT &T Corporation; Conditional Use Permit # 01 -09 Dear Members of the Frederick County Planning Commission: Stephen L. Pettler, Jr. Facsimile 540.667.1312 pettler@,harrison-johnston.com Mobile 540.664.5134 As you know, the above referenced Conditional Use Application was tabled by motion of the Planning Commission when it was heard on March 18, 2009. The matter is scheduled to be taken up again at the Planning Commission hearing set for April 15, 2009. Upon review of the recording of the hearing and the minutes, I noted that many of you expressed support for the application as submitted with a lattice structure on the proposed site. Because the motion made by Mr. Oates was a motion to deny recommendation and was then followed by a motion to table, you did not have the opportunity to vote on a motion to recommend the application to the Board of Supervisors. My client and I hope this opportunity will occur at the hearing on April 15, 2009. From my review of the record of the March 18' hearing it appears that the primary unresolved issue this application presented to the Planning Commission was one of aesthetics. The comments of the commission members centered around a discussion of whether or not a monopole structure was more aesthetically appealing than the proposed lattice structure, particularly due to the proximity of the proposed location to the battlefields in the area. Hopefully, my client and I have impressed upon you the fact that the lattice structure provides the stability and support necessary to insure uninterrupted microwave transmissions for the FEMA operations in the most practical and cost effective manner. Not only is the structure more economical to AT &T (and, since the federal government is the end used, to as tax payers), it is also more economical for other potential users of the mast (such as county EMS or commercial co- locators) to install equipment on a lattice structure than on an enormous monopole structure. Letter to Members of the Frederick County Planning Commission April_ 11, 2009 Page 2 However, beside being the most practical solution to deliver the services required by FEMA, we believe the lattice tower is the more aesthetically appealing option. In order to illustrate this, my client commissioned more photographic illustrations of the lattice structure from various viewpoints. Attached with this letter are four (4) illustrations for your consideration in this regard. The first illustration shows an overview of the area with the location of the proposed mast and the locations of three (3) viewpoints from which illustrations were generated. The illustrations of the mast were created from data obtained by floating a balloon at the height of the tower and superimposing an appropriately scaled structure on a photograph taken from each viewpoint. The illustrations from the first two (2) viewpoints are what drivers will see driving north or south on Route 11. The third viewpoint, I believe, is the most illustrative. The third viewpoint illustrates what the proposed mast would look like from Milburn Road looking across the core battlefields area. It also depicts what Route 37 will look like in the future when it is constructed in the location depicted in the County's Comprehensive Plan. The illustration of Route 37 was created from the actual profiles of proposed Route 37 in the area depicted in the Comprehensive Plan as generated by VDOT. John Callow of Patton Harris Rust & Associates, P.C. supervised the creation of this illustration, and he will be in attendance at the hearing on April 15` to answer any questions you may have about these illustrations. As you can see from the illustrations, it appears that the lattice structure will more readily blend in with the surrounding viewscape than a monolithic, smokestack -like monopole structure. Further, concerns about the mast denigrating the viewshed from the battlefields area fail to account for the future location of Route 37. Route 37 will create a stark separation between the battlefields and the mast. Route 37 will be the dominant feature in the viewshed looking west across the battlefields area, not the mast. As the County has planned to locate Route 37 as set forth in the Comprehensive Plan, we believe the location of the mast in the proposed location fits readily into the long term planning for the County in this area. The current residential uses along Route 11 to the north and south of the AT &T location are designated in the Comprehensive Plan for commercial uses in the future. Commercial users will require telecommunications facilities. It makes sense to locate such facilities in the areas where they will be used (this is the concept of the "links in the chain" discussion during the March 18` hearing). Placing the mast in the location proposed actually lessens its impact to the viewshed from the battlefields area in the long -term since Route 37 will create a "natural" barrier between the proposed location and the core battlefields area. We hope this information further serves to inform your decision to support AT &T's application for a lattice structure in the location proposed. We look forward to addressing any concerns you may have at the hearing on April 15` however, should you have any questions or comments before the hearing, please do not hesitate to contact me. Letter to Members of the Frederick County Planning Commission April 11, 2009 Page 3 As always, thank you for your time and courteous consideration of this matter. With best regards, Iam Very truly yours, / /s // Stephen L. Pettler, Jr. Stephen L. Pettler, Jr. SLP /sp cc: AT &T Corporation (via email) Eric Lawrence, Director, Frederick County Planning (via email) Mark Cheran, Zoning Administrator, Frederick County (via email) I A 01, .... . . . . . . y 7T I t c - wy.., �-° - 't J . f Ae.• P A , J r