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HomeMy WebLinkAbout01-09 BOS Staff ReportCONDITIONAL USE PERMIT #01-09 AT&T AND WESLEY HELSLEY 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 Action Planning Commission: 02/18/09 Postponed at Applicant’s Request 03/18/09 Tabled by PC for 28 days 04/15/09 Recommended approval Board of Supervisors: 05/13/09 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 #01-09 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 be 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 #01-09 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 FEMA 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 Permit #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: 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 service 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 12 months of abandonment of operation. 5. 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 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. 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.)