HomeMy WebLinkAbout08-19 ResolutionAction: Resolution adopted
BOARD OF SUPERVISORS: April 8, 2020
RESOLUTION
Denying Conditional Use Permit Application Number 08-19
of Landgrant Lane LLC and TowerCo 2013 LLC
for a Commercial Telecommunications Facility,
on Property Located at 107 Emory Court,
Tax Parcel Number 75-A-118, in the Opequon Magisterial District
WHEREAS, on December 2, 2019, Landgrant Lane LLC and TowerCo 2013
LLC (the "Applicants") submitted Conditional Use Pen -nit Application Number 08-19
(the "Application"), requesting approval of a Conditional Use Permit, pursuant to
Frederick County Code § 165-204.19, for a commercial telecommunications facility, on
property located at 107 Emory Court, Tax Parcel Number 75-A-118 (the "Property"), in
the Opequon Magisterial District; and
WHEREAS, the Frederick County Planning Commission conducted a public
hearing on the Application on January 15, 2020; and
WHEREAS, the Frederick County Planning Commission recommended denial of
the Application on January 15, 2020, by a vote of 11-1; and
WHEREAS, the Board of Supervisors conducted a public hearing on the
Application on April 8, 2020; and
WHEREAS, the Property is located in the Rural Areas (RA) Zoning District; and
WHEREAS, surrounding the Property on all sides is property located in the
Rural Areas (RA) Zoning District, owned by Frederick County and operated by Frederick
County as Sherando Park, which serves as a major recreation facility for the community;
and
WHEREAS, approximately 1 10 feet to the northeast of the Property is property
located in the Residential Performance (RP) Zoning District, specifically, the Old
Dominion Greens residential subdivision, which subdivision is in fact in use for
Frederick County Board of Supervisors
Resolution Denying Conditional Use Permit Application Number 08-19
April 8, 2020
Page 2
exclusively residential purposes or is currently under development for use for exclusively
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WHEREAS, the Board of Supervisors finds the requested use of the Property for
a commercial telecommunications facility is not in conformance with the Comprehensive
Plan and that placement of a commercial telecommunications facility on the Property is
inconsistent with the Comprehensive Plan, for reasons including but not limited to the
following:
• The Property and the surrounding area are located within the area
encompassed by the Southern Frederick Area Plan (the "Area Plan")
component of the Comprehensive Plan and the Area Plan shows the Property
and the surrounding area as being planned for recreation uses, the surrounding
area specifically being Sherando Park, a major recreation facility for the
community; and
• The Old Dominion Greens residential subdivision, located approximately 110
feet to the northeast of the Property, is within the area encompassed by the
Area Plan, which shows the Old Dominion Greens residential subdivision as
being planned for residential uses, at a density of four units per acre; and
• The Property is located approximately 900 feet to the northeast of Wrights
Run and the banks of Wrights Run, which is within the area encompassed by
the Area Plan, which shows Wrights Run and the banks of Wrights Run
designated as a natural resources and recreation area; and
• Although commercial telecommunications facilities are permitted by
conditional use permit in the RA Zoning District, such permission is expressly
conditioned by § 165-204.19(C)(1) of the Frederick County Zoning Ordinance
on the proviso that, pursuant to 5 15.2-2232(A) of the Virginia Code, the
general location or approximate location, character, and extent of such
facilities must be substantially in accord with the adopted Comprehensive
Plan or part thereof, and, as such, the Board finds that the Applicants have
failed to establish compliance with the foregoing provisions and the Board
further finds that the general location or approximate location, character, and
extent of the commercial telecommunications facility proposed in the
Application is not substantially in accord with the adopted Comprehensive
Plan or part thereof; and
• The Frederick County Planning Commission has also not approved the
proposed commercial telecommunications facility as so being substantially in
accord with the adopted Comprehensive Plan or part thereof, under the
provisions of Va. Code § 15.2-2232(A); and
Frederick County Board of Supervisors
Resolution Denying Conditional Use Permit Application Number 08-19
April 8, 2020
Page 3
WHEREAS, although commercial telecommunications facilities arc permitted by
conditional use pennit in the RA Zoning District, such permission is also expressly
conditioned by § 165-204.19 of the Frederick County Zoning Ordinance, which provides
that, adjoining properties, surrounding residential properties, land use patterns, and scenic
areas cannot be negatively impacted by the proposed facility, and the Board finds that
adjoining properties, surrounding residential properties, land use patterns, and scenic
areas would be negatively impacted by the proposed commercial telecommunications
facility, based on the height of the proposed tower and the lack of adequate screening, for
reasons including but not limited to the following:
• The simulations presented by the Applicant of the proposed commercial
telecommunications facility reveal that the proposed site provides little, if any,
screening for the proposed commercial telecommunications facility,
specifically the tower itself, thereby leaving unobstructed and unsightly views
of that facility from several different vantage points (one such example, at a
site located 0.11 miles, is attached hereto as Exhibit I and numerous other
homes and park land are similarly located within 0.25 miles or less from tine
location of the proposed commercial telecommunications facility, as shown in
Exhibit 2 attached hereto); and
• The height of the proposed commercial telecommunications facility, 150 feet,
at a location 729 feet above sea level (see Exhibit 3 attached hereto), for a
total height of 879 feet above sea level, is significantly greater than every
structure in the immediate vicinity, within at least one mile in any direction,
(see Exhibit 4 attached hereto) and, therefore, the proposed commercial
telecommunications facility is incompatible with and out of scale with the
height all of the existing structures in the immediate vicinity of the proposed
tower; and
• Sherando Park serves as a major recreation facility for the community and tine
requested use would be inconsistent with and would negatively impact the
public enjoyment of the park as scenic open space for recreational use; and
• The Property is located in an environmentally significant area, containing
scenic landscape, scenic features, and habitat for various wildlife, and the
requested use would be incompatible with and would negatively impact the
area by detracting from the general viewshed of the area, especially in view of
the height of the proposed facility and the lack of adequate screening of that
facility; and
• The Property is located nearby to a significant residential area and that the
nature of such a facility would be inconsistent with such an area and would
Frederick County Board of Supervisors
Resolution Denying Conditional Use Permit Application Number 08-19
April 8, 2020
Page 4
negatively impact that area in ten -ns of, among other things, viewshed and
property values; and
WHEREAS, the search area that the Applicants identified for the proposed
commercial telecommunications facility contains one or more other locations more
suitable for such a facility; and
WHEREAS, at the Planning Commission public hearing on the Application, at
least 16 citizens spoke against approval of the Application (and one citizen spoke in
favor), citing the following as among the reasons that approval of the Application would
be inappropriate: inconsistency of the facility with the nature of the area, negative impact
on viewshed, and negative impact on property values; and
WHEREAS, in advance of the Board of Supervisors public hearing on the
Application, the Board of Supervisors received comments (by electronic submission)
from at least 61 citizens who are against approval of the Application (and two in favor), a
copy of which comments is attached hereto as Exhibit 5 (Exhibit 5 is a compilation
reflecting the names of each and every person submitting a comment, and his or her
respective verbatim comment, with the compilation omitting, for privacy reasons, the
physical addresses, telephone numbers, email addresses of each such person, but the
Board of Supervisors retains the original versions of the comments, with such
information, and incorporates the same as if fully set forth herein); and
WHEREAS, at the Board of Supervisors public hearing on the Application, two
citizens spoke against the proposed commercial telecommunications facility and none
spoke in favor of the proposed commercial telecommunications facility;
NOW, THEREFORE, BE IT RESOLVED that, based on the foregoing
grounds, the Frederick County Board of Supervisors does hereby deny the Application,
pursuant to Frederick County Code § 165-204.19, for a commercial telecommunications
facility, on property located at 107 Emory Court, Tax Parcel Number 75-A-118, in the
Opequon Magisterial District; and
BE IT FURTHER RESOLVED that the Frederick County Board of Supervisors
does hereby incorporate such other and further written submissions (whether received
electronically or in paper form) as it has received concerning the Application, and the
reports of County staff, as part of this written resolution in support of the denial of the
Application, as if fully set forth herein; and
BE IT FURTHER RESOLVED that, pursuant to the requirements of Virginia
Code § 15.2-2316.4:1(E)(2), the Board of Supervisors states that the only modifications,
if any, of which it is aware that would permit it to approve the Application are, possibly,
that the height of the proposed commercial telecommunications facility were reduced
Frederick County Board of Supervisors
Resolution Denying Conditional Use Permit Application Number 08-19
April 8, 2020
Page 5
and/or that the proposed commercial telecommunications facility be placed at another
location that would serve the area.
Passed this 8th day of April, 2020, by the following recorded vote:
Charles S. DeHaven, Jr., Chainnan Yes
J. Douglas McCarthy Yes
Robert W. Wells Yes
Judith McCann -Slaughter Yes
BOS Res. #070-20
Shawn L. Graber Yes
Blaine P. Dunn Yes
Gene E. Fisher Yes
A COPY ATTEST
Iris ie i ley
Frederick County Adin'nistrator