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HomeMy WebLinkAbout01-09 PC Staff Report - AprilCONDITIONAL USE PERMIT #01-09 AT&T AND WESLEY HELSLEY Staff Report for the Planning Commission Prepared: April 1, 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 Pending 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 lattice type commercial telecommunication facility. Staff would note that the proposed site does not appear to 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. County Code § 165-48.6(B)(2). 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. The Planning Commission tabled the CUP for 28 days 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. Should the Planning Commission 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. 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. Page 2 Conditional Use Permit #01-09 AT&T and Wesley Helsley April 1, 2009 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: 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 Page 3 Conditional Use Permit #01-09 AT&T and Wesley Helsley April 1, 2009 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 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. Page 4 Conditional Use Permit #01-09 AT&T and Wesley Helsley April 1, 2009 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 adjacent to the study area of Third Battle of Winchester. Comprehensive Plan at 2-12. 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 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 Page 5 Conditional Use Permit #01-09 AT&T and Wesley Helsley April 1, 2009 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 and 04/01/09 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 appear to 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 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. Page 6 Conditional Use Permit #01-09 AT&T and Wesley Helsley April 1, 2009 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 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. Page 7 Conditional Use Permit #01-09 AT&T and Wesley Helsley April 1, 2009 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.) Following the requisite public hearing, it would be appropriate for the Planning Commission to offer a recommendation concerning this application to the Board of Supervisors.