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Home My WebLink About04-18 CommentsPam Deeter From: Robert Mitchell <rmitchell@hallmonahan.com> Sent: Wednesday, April 18, 2018 1:47 PM To: Pam Deeter; Mark Cheran Subject: RE: Draft letter for appeals #03-18 Rockwood 72 & #04-18 750 Remington Attachments: Rockwood Insert.docx; Remington Insert.docx Pam and Mark: Attached are drafts of a suggested revision to the two draft letters, to replace the first two sentences of the draft letters. I have suggested the revisions as I think it is'important for the letters to reflect that the administrative determinations were affirmed and for the letters to set forth the administrative determinations made, particularly in the Rockwood case to show that the determination affirmed included the requirement to remove the tower. Please contact me .if you have any questions on this. Thanks, :•• Robert T. Mitchell, Jr. HALL, MONAHAN, ENGLE, MAHAN & MITCHELL P. O. Box 848 Winchester, Virginia 22604 540-662-3200 Telephone 540-662-4304 Fax E-MAIL rmitchell(aD_hallmonahan.com From: Pam Deeter [mailto:pdeeter@fcva.us] Sent: Wednesday, April 18, 2018 9:56 AM To: Robert Mitchell <rmitchell@hallmonahan.com> Subject: Draft letter for appeals #03-18 Rockwood 72 & #04-18 750 Remington Good morning Mr. Mitchell, Would you please review the attached two draft letters for the appeals. If you have any corrections or questions, please contact Mr. Cheran. Pam Deeter Planning and Development 107 N. Kent Street, Suite 202 Winchester, VA 22601 (540) 665-5651 1 Remington This will confirm that the Board of Zoning Appeals, at its meeting on April 17, 2018, denied the above -referenced appeal application and affirmed the administrative determination of the Zoning Administrator that a Conditional Use Permit (CUP) must be obtained for the two commercial telecommunication towers erected on the property without a CUP or the towers must be removed.. fA A 1♦ V. t1 C l d 1 T H 1 & A E X i. V PLC ATTORNEYS AND COUNSELLORS AT LAW — January 12, 2018 Board of Zoning Appeals of Frederick County, Virginia Via hand delivery 107 N. Kent Street 1Y 111V11liJlV1, Y ll�11110. GGVV1 RE: Lot 16, Block E, Section 18, Wilde Acres (Mountain Falls Park) Frederick County PIN 58A08 E18 16 (the "Property") Dear Members of the Board: This firm represents 750 Remington, LLC ("Remington"), the owner of the above - referenced Property. This letter will serve to summarize Remington's grounds for appeal of the adverse decision rendered by letter dated December 13, 2017, by Mark R. Cheran, Zoning Administrator for Frederick County, Virginia (the "Decision"), a copy of which is enclosed herewith as Exhibit 1. I. Remington's Status as an Aggrieved Party For the reasons stated herein, Remington is an aggrieved party for the purposes of Section 15.2-2311 of the Code of Virginia (1950, as amended). "In order for a petitioner to be `aggrieved,' it must affirmatively appear that such person had some direct interest in the subject matter of the proceeding that he seeks to attack." Virginia Beach Beautification Com'n v. Board of Zoning Appeals of City of Virginia Beach, 231 Va. 415, 419, 344 S.E.2d 899, 902 (1986). As set forth herein, the Decision gives Remington a direct interest in this matter and standing to pursue this appeal. II. Decision In the Decision, the Zoning Administrator finds Remington in violation of Section 165- 204.19 of the Frederick County Zoning Ordinance (the "Ordinance") for maintaining two (2) telecommunications structures on the Property without an approved Conditional Use Permit ("CUP"). The Decision states that "any telecommunications structures built within Frederick County are required to have obtained an approved CUP." III. Legal Argument and Conclusion As described above, the Decision relies exclusively on Section 165-204.19 of the Ordinance for the finding of violation on the part of Remington. The Decision grossly misconstrues the language of Section 165-204.19. The Board must overturn the Decision for the simple reason that Section 165-204.19 only requires a CUP for commercial telecommunications facilities. No mention is made in this Section, or indeed elsewhere in the Ordinance, of a CUP being required for construction/maintenance of an amateur telecommunications facility, which both of Remington's towers are. David B. Williamson, Manager/Member of Remington, 302 W. Boscawen St., Winchester, VA 22601 j T: 540.722.2181 1 P: 540.722.2381 1 mccarthyakers.com Offices throughout Northern Virginia and the Shenandoah Valley Board of Zoning Appeals of Frederick County, Virginia January 12, 2018 Page 2 possesses an active amateur radio technician license from the Federal Communications Com -mission ("F(C") and is an active member of local amateur radio groups. A copy of his FCC license is enclosed herewith as Exhibit 2. As the Board no doubt is aware, FCC regulations offer robust protection for owners to erect amateur radio antenna structures. FCC regulations protect owners' ability to erect amateur radio facilities "at heights and dimensions sufficient to accommodate amateur service communications." ' State and local regulation "must not preclude amateur service communications. Rather, it must reasonably accommodate such communications and must constitute the minimum practicable regulation" to meet the government's purpose.Z Furthermore, even if Section 165-204.19 somehow is deemed to apply to amateur telecommunications facilities, one (1) of the radio towers on the Property predates ownership of the Property by Remington or anyone affiliated with it. Upon information and belief, the first tower was constructed in approximately 2010 by a prior owner of the Property. David B. Williamson, Manager/Member of Remington, did not purchase the Property until 2013, and subsequently transferred the Property to Remington in 2017. For this tower, Remington should be grandfathered in based on the County's failure to pursue enforcement action until late 2017. Given the clearly erroneous nature of the Decision, our client's amateur usage of the radio towers, and FCC regulations that protect this operation, we respectfully request that the Board overrule the Decision and permit these towers to remain in place. On behalf of our client, thank you for your consideration of this matter. We look forward to addressing these matters at an upcoming hearing of the Board. Very truly yours, II/ e Matthew S. Akers MSA/aph Enclosures as stated cc: Client ' 47 C.F.R. § 97.15, available at https://www.law.cornell.edu/cfr/text/47/97.15 Z Id.; see also PRB-1, 101 FCC 2d 952 (1985), available at https://www.fcc.gov/wireless/bureau-divisions/mobility- division/amateur-radio-service/prb- 1- 1985 EXHIBIT 1 COUNTY of FREDERICK Department of Planning and Development 540/665-5651 Fax: 540/ 665-6395 CERTIFIED MAIL December 13, 2017 750 Remington LLC Attn: David Williamson 2979 Valley Avenue Winchester, VA 22601 RE: 750 Remington Drive Property Identification Number (PIN): 58A08 -E18-16 Zoning District: R-5 (Residential Recreational Community) Dear Mr. Williamson: This letter is in response to a complaint this office received regarding the use and construction of two (2) telecommunication structures being used for wireless internet transmission on the above -referenced property without an approved Conditional Use Permit (CUP). In accordance with Section 165-204.19 of the Frederick County Zoning Ordinance, requires any telecommunication structures built within Frederick County are required to have obtained an approved CUP. The presence of these telecommunication structures on the above -referenced property constitutes a violation of the provisions of Section 165- 204.19 and is not allowed. Resolution of this violation may be accomplished by applying for and approval of a. CUP for the telecommunication structures or removing the structures from the property. This office will allow thirty (30) days from receipt of this letter to resolve this violation. Failure to comply with the Frederick County Zoning Ordinance will result in a criminal complaint being filed against you. This office will allow thirty (30) days from receipt of this letter to resolve this violation. Failure to comply with the Frederick County Zoning Ordinance will result in a criminal complaint being filed against you. 107 North Kent Street, Suite 202 * Winchester, Virginia 22601-5000 Page 2 750 Remington LLC Re: PIN 58A08 -E-18 December 13, 2017 You have the right to appeal this notice of violation within thirty (30) days of the date of this letter in accordance with Section 15.2-2311 of the Code of Virginia. This decision shall be final and unappealable if it is not appealed within thirty (30) days. Should you choose to appeal, the appeal must be filed with the Zoning Administrator and the Board of Zoning Appeals (BZA) in accordance with Article X, Section 165-1001.02 (A), of the Frederick County Zoning Ordinance. This provision requires the submission of an application form, a written statement setting forth the decision being appealed, the date of decision, the grounds for appeal, how the appellant is an aggrieved party, any other information you may want to submit, and a $250.00 filing fee. Once the appeal application is accepted, it will be scheduled for public hearing and decision before the BZA. Please contact me regarding any questions that you may have at (540) 665-5651. Sincerely, Mark R. Cheran Zoning Administrator MRC/dlw cc: Mark Fleet, Building Official bcc: Gary Lofton, Back Creek Supervisor EXHIBIT 2 12/20/2017 ULS License - Amateur License - KN41OY - Williamson, David B ULS License Amateur License - KN410Y - Williamson, David B http;ftwireless2.fcc.gov/UlsApp/U ls5earch/license.jsp?IicKey=3985974&printable 1/1 rcc, %..vr- t This is not an official FCC license. It is a record of public information contained in the FCC's licensing database on the date that this reference copy was generated. In cases where FCC rules require the presentation, posting, or display of an FCC license, this document may not be used in place of an official FCC license. Cut Along This Line FCC Registrafiion Number (FRN): Spe NONE 0 Q 'Grant Date I 12-20-2017 1 -Ile Number: I . Date 1, 12-20-2017 0008037006 1 Technician THIS LICENSE IS NOT TRANSFERABLE (Licensee's Signature) FCC 660 - Cut Along This Line Cut Along This Line Licensee: This is your radio Fite Number Print Cute authorization in sizes KN410Y 12-20_2017 suitable for your wallet and for framing. Carefully cut the 0008037006 12.2172017 `12-20-2017 documents along the lines as Operator Privileges indicated and sign c immediately upon receipt. - They are not valid until r signed. THIS LICENSE IS NOT TRANSFERABLE (Licensee's Signature) FCC 660 - Cut Along This Line Cut Along This Line Call Sign / Number Grant Date The Commission suggests Fite Number Print Cute that the wallet size version KN410Y 12-20_2017 be laminated (or another 0008037006 12.2172017 `12-20-2017 similar document protection Operator Privileges process) after signing. The c Commission has found - under certain circumstances, r laser print is subject to m displacement 0 ZZ WiLLIAMSON, DAVID B U Call Sign / Number Grant Date Expiration Date Fite Number Print Cute Effective Date KN410Y 12-20_2017 12-20-2027 0008037006 12.2172017 `12-20-2017 Operator Privileges Station Privileges THiS LICENSE IS NC?T TRAk*RABLE Technician PRIMARY a Special Conditions /Endorsements. NONE WiLLIAMSON, DAVID B 2979 VALLEY AVE WINCHESTER, VA 22601 AMATEUR RADIO LICENSE o FCC Registration Number (FRN): 0027092949 LL '• (Licensee's si FEDERAL COMMUNICATIONS FCC 660 . May 2047 ' COMMISSION Cut Along This Line Qa _ J u, FF - a', a d U ------------------ Conditions: Pursuant to §309(h) of the Communications Act of 1934, as amended, 47 U=S.C. §309(h), this license is subject to the following conditions: This 'license shall not vest in the licensee any right to operate the station nor any right in the use of the frequencies designated in the license beyond the terrrl'thereof nor in any other manner than authorized herein. Neither the license .nor the right granted thereunder shall be assigned or otherwise transferred in violation of the Communications Act of 1934, as amended. See,47 U.S.C: § 310(d). This license is subject in terms to the right of use or contras conferred by §706 of the Communications Act of 1934, as amended' See 47 U.S.C. §606. Conditions: Pursuant to §309(h) of the Communications Act of 1934, as amended, 47 U.S.0 §309(h), this'iicense is subject to the following conditions: This license shall not vest in the licensee any right to operate the sfatlon-bor any right in the use of the frequencies designated in the license beyond the term thereof nor in any other m.arlter than authorized herein. Neither the license nor the right granted thereunder shall be assigned or othe,fwise.transferred in violation of the Communications Act of 1934, as amended. See 47 U.S.C. § 310(d). This lieense:is-`subject in terms to the right of use or control conferred by §706 of the Communications Act of 1934, .a9 amended. See 47 U.S.C. §606. LIA77 V's 4L Y. VOW A7 I- V, � t % � Vie• ' . I \\ � ,'/ Ate"' Y `r f I ., � \ 1 it r � 1 , + r � +`� � \ Y,1� � � � � 7 -58 71 Nil V °7 t 4 X40 x�� 1 .�.k, ,S x � �' - � �. \ �t��.:?� �, i '`WWF - �'•`�,,t �t "t..r ��,. 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[Amended ii -i3-1991] Words and terms set forth below shall have the meanings ascribed to them. Any word, term(s) or phrase used in this Zoning Ordinance not defined below shall have the meaning ascribed to such word, term or phrase in the most recent edition of Merriam -Webster's Dictionary unless, in the opinion of the Zoning Administrator, established customs or practices in Frederick County, Virginia justify a different or additional meaning. Furthermore, for the purpose of this Zoning Ordinance, certain words, terms and phrases are herein defined as follows: [Amended 12-14-20051 ABUT To physically touch or border upon or to share a common property line. ACCESS A way or means of vehicular or pedestrian approach to provide physical entrance to a property. ACCESSORY OR SECONDARY USE A use of land or of a building or portion thereof customarily associated with and incidental and subordinate to the principal use of the land or building and located on the same lot with such principal use. A secondary use shall be a use not already permitted by right in a zoning district but may be permitted in conjunction with a permitted use. [Amended 9-23-2009] ACTIVE DISTANCE BUFFER A distance buffer which contains no building or principal structure of activity but which may contain an accessory use or activity. ADDITION A structure added to the original structure at some time after the completion of the original. ADJACENT OR ADJOINING LOT OR LAND A lot or parcel of land which shares all or part of a common lot line with another lot or parcel or land or which is immediately across a street or road from said parcel or lot. ADULT CARE RESIDENCES A public or private establishment operated or maintained for the maintenance or care of four or more adults who are aged, infirm or disabled and who are cared for in a primarily residential Frederick County, VA Page 6 of 36 athletic, training, recreational or park purposes, games, cultural activities, martial arts, archery and the like. [Amended 1-11-2017] COMMERCIAL OUTDOOR RECREATION Private, fee -supported, outdoor facilities used for athletic, training, recreational or park purposes that utilizes supervised athletic or recreational activities. COMMERCIAL SPORT AND RECREATION CLUBS A public or private fee -supported recreational facility located indoors or outdoors that may include swimming pools, court games and other similar activities. [Added 10-25-2000] COMMERCIAL TELECOMMUNICATION FACILITY A structure, including the tower, antennas, panels, microwave dishes, receiving dishes, equipment building, other transmitting and receiving components and other accessory structures, used for the wireless electromagnetic transmission of information, excluding structures utilized as satellite earth stations and structures utilized for amateur or recreational purposes such as ham radio or citizen band radio. [Added 4-9-19971 COMMERCIAL VEHICLE Any vehicle (1) with a gross vehicle weight registered with the Virginia Department of Motor Vehicles or any other state or government agency as 12,000 pounds and greater and used for commercial purposes, or (2) any vehicle, regardless of weight, licensed as a "for hire" vehicle, or any limousine or bus used as a common or contract carrier vehicle. For purposes of this chapter, a commercial vehicle shall not be deemed to include any of the following: police vehicle, emergency vehicle, commuter van, motor home, camping trailer, boat trailer or similar recreational equipment used as a personal property and not for hire or used as a school van or bus. [Added 9-23-20091 COMMON OPEN SPACE Land that is used for recreational purposes, environmental resource protection, buffer areas, stormwater management areas and passive areas that are dedicated to the residents of a development for use and maintenance, and is protected to ensure that it remains in such uses, unless utilized under the provisions of § 165-402.o7A of this chapter. [Amended 4-26-2005] COMPATIBLE Capable of existing together in harmony; congruous. [Added 9-12-2001] COMPREHENSIVE PLAN A general plan for the future development of Frederick County, adopted by the Frederick County Board of Supervisors according to the provisions of the Virginia Code. CONDITIONAL USE A use permitted in a particular zoning district only with the granting of a conditional use permit by the Board of Supervisors. CONFERENCE/EVENT CENTER A structure or facility designed to accommodate meetings and other events with or without food service developed to be either stand-alone or within a hotel or motel. [Added 9-12-2001] h9trrc //ec.r��e�(3.c.nm/v,1i11t/>F1�13649wi;d=Q7nQ,!'71 I Jn!� nnn Frederick County, VA Enclosure 5 Pagel of 3 Chapter 165. Zoning ARTICLE II, Supplementary Use Regulations; Buffers; and Regulations for Specific Uses Frederick County, VA Friday, March 9, 2078 Parking; Part 204. Additional Regulations for Specific Uses § 165-204.19. Telecommunications facilities, commercial. [Added 4-9-1997; amended 7-8-1998; 9-25-2002;11-12-2003;10-13-2010;1-25-2012] No commercial telecommunications facility shall be sited, constructed, or operated except pursuant to a conditional use permit issued through the process defined in Part 103 of Article I of this chapter. Commercial telecommunications facilities that locate on existing structures and towers shall be exempt from the conditional use permit requirement. The issuance of a conditional use permit for the siting, construction, and operation of a commercial telecommunications facility is permitted within the zoning districts specified in this chapter, provided that, pursuant to § 15.2-2232A of the Code of Virginia (195o, as amended), the general location or approximate location, character, and extent of such facilities are substantially in accord with the adopted Comprehensive Plan or part thereof and that adjoining properties, surrounding residential properties, land use patterns, scenic areas and properties of significant historic value are not negatively impacted. A. Information required as part of the conditional use permit application and that the Planning Commission and the Board of Supervisors may consider in acting on the application shall include, but not be limited to, the following: (1) Information regarding the need for the facility, including but not necessarily limited to usage statistics, operational data, and maps and reports showing current and anticipated radio frequency propagation. (2) A map depicting the search area used in siting the proposed commercial communications facility. (3) Identification of all service providers and commercial telecommunications facility infrastructure within a search area. The applicant shall provide confirmation that attempts to co -locate on existing structures or towers have been made and, if such attempts were unsuccessful, the reasons so. (4) Documentation issued by the Federal Communications Commission indicating that the proposed commercial telecommunications facility is in compliance with the Federal Communications Commissions established ANSI/IEEE standards for electromagnetic field levels and radio frequency radiation. (5) hffnc•//PPnriP'1AO enm/nr;nf/FR 1 ZA,d?onv1=R7nR'101 2 i0iwA10 Frederick County, VA Page 2 of 3 An affidavit signed by the landowner and by the owner of the facility stating that they are aware that either or both of them may be held responsible for the removal of the commercial telecommunications facility as stated in § 165-204•'96(7)- B. If the Board of Supervisors grants a conditional use permit under this section, the following standards shall then apply to any property in which a commercial telecommunications facility is sited, in order to promote orderly development and mitigate the negative impacts to adjoining properties, residential properties, land use patterns, scenic areas and properties of significant historic value: (1) The Board of Supervisors may reduce the required setback distance for commercial telecommunications facilities as required by § 165-201.03B(8) of this chapter if it can be demonstrated that the location is of equal or lesser impact. When a reduced setback is requested for a distance less than the height of the tower, a certified Virginia engineer shall provide verification to the Board of Supervisors that the tower is designed, and will be constructed, in a manner that if the tower collapses for any reason the collapsed tower will be contained in an area around the tower with a radius equal to or lesser than the setback, measured from the center line of the base of the tower. In no case shall the setback distance be reduced to less than 1/2 the distance of the tower height. Commercial telecommunications facilities affixed to existing structures shall be exempt from setback requirements, provided that they are located no closer to the adjoining property line than the existing structure. [Amended 9-26-2012] (2) Monopole -type construction shall be required for new commercial telecommunications towers. The Board of Supervisors may allow lattice -type construction for new telecommunications towers when existing or planned residential areas will not be impacted and when the site is not adjacent to identified historical resources. (3) Advertising shall be prohibited on commercial telecommunications facilities except for signage providing ownership identification and emergency information. No more than two signs shall be permitted. Such signs shall be limited to 1.5 square feet in area and shall be posted no higher than 10 feet above grade. (4) When lighting is required on commercial telecommunications facility towers, dual lighting shall be utilized which provides daytime white strobe lighting and nighttime red pulsating lighting unless otherwise mandated by the Federal Aviation Administration or the Federal Communications Commission. Strobe lighting shall be shielded from ground view to mitigate illumination to neighboring properties. Equipment buildings and other accessory structures operated in conjunction with commercial telecommunications facility towers shall utilize infrared lighting and motion -detector lighting to prevent continuous illumination. (5) Commercial telecommunications facilities shall be constructed with materials of a galvanized finish or painted a noncontrasting blue or gray unless otherwise mandated by the Federal Aviation Administration or the Federal Communications Commission. (6) Commercial telecommunications facilities shall be adequately enclosed to prevent access by persons other than employees of the service provider. Appropriate landscaping and opaque screening shall be provided to ensure that equipment buildings and other accessory structures are not visible from adjoining properties, roads or other rights-of- way. (7) Any antenna or tower that is not operated for a continuous period of 12 months shall be considered abandoned, and the owner of such tower shall remove same within 90 days of receipt of notice from the Frederick County Department of Planning and Development. httt)s://ecode360.com/t)rint/FR13WimidA708301 '11011ni Q Frederick County, VA Page 3 of 3 Removal includes the removal of the tower, all tower and fence footers, underground cables and support buildings. If there are two or more users of a single tower, then this provision shall not become effective until all users cease using the tower. 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. C. "Existing structure or tower," for purposes of this section, shall mean any man-made object having an ascertainable stationary location on or in land or water, whether or not it is affixed to the ground, which object is at least 5o% of the height of the proposed commercial telecommunications facility. https://ecode360.com/print/FR1364?quid=8708301