STAFF PERSON:                     Stephen B. Waller, AICP                  

PLANNING COMMISSION:            DECEMBER 16, 2003

BOARD OF SUPERVISORS:            JANUARY 14, 2004

 

SP 03-070 GALLIHUGH, Gregory R. (NEXTEL)

 

Applicant’s Proposal:

 

The applicant’s proposal is for the installation of a personal wireless service facility, which would include a metal monopole, approximately 85 feet in total height, and top elevation that is approximately 720 feet Above Mean Sea Level (Attachment A).  This would result in a monopole with a top height that is approximately 8 feet taller in elevation AMSL, than the 76-foot tall tree identified as T-20 in the attached construction plans.  The monopole would be equipped with one array consisting of three 6-foot long by 1-foot wide and 7-inch deep, flush-mounted panel antennas at its top and supporting ground equipment would be contained within a 9-1/6-foot tall, 200 square-foot shelter.  The 1369 square-foot lease area for this proposed facility is located on property, described as Tax Map 74 - Parcel 2C, containing 2.78 acres.  This parcel is located in the Samuel Miller Magisterial District on the north side of State Route 637 (Dick Woods Road), between Interstate Route 64 and State Route 637, approximately 1/2 mile southwest of Exit 114 from I-64 to Ivy (Attachment B).  The property is zoned RA, Rural Areas and designated as Rural Area 3 by the Comprehensive Plan.

 

Petition:

 

The applicant, Nextel Communication, is in the process of expanding its services along Interstate Route 64 in Albemarle County west of the City of Charlottesville.  This request is for a special use permit to allow the construction of a personal wireless service facility in accordance with Section 10.2.2.6 of the Zoning Ordinance, which allows for radio wave transmission and relay towers and their appurtenances in the Rural Areas, by special use permit.

 

Planning and Zoning History:

 

SP 00-028 Alltel/Ivy Exit - At its meeting on September 13, 2000, the Board of Supervisors granted approval of a personal wireless service facility with a monopole that 75-foot not exceed five feet above the tallest tree within 25 feet, as measured above mean sea level (Attachment C).  Because of some specific issues surrounding the expected skylighting of the monopole above the treeline, a 96-foot tall tree located within 25 feet of the facility was disqualified from consideration in determining the monopole’s height.  Furthermore, due to their importance in providing screening of the monopole from properties located to the south, three additional trees that are far away from the existing site were addressed in the condition requiring a tree conservation plan.

 

Character of the Area:

 

The subject parcel is surrounded by properties that are all zoned Rural Areas, mainly consisting of small, rural-residential lots on each side and those that have been developed within the Rosemont subdivision, which is located on the south side of Route 637.  The northernmost property line is shared with Tax Map 74 - Parcel 14A, which is a large, undeveloped part of the original Verulam Farm tract and separates the subject parcel from the right-of-way for I-64 by more than 350 feet.  The site of the proposed facility is located in a sparsely wooded area approximately 170 feet north of the dwelling, which is also located on the same parcel, gradually slopes downward toward the rear property line.  The nearest dwelling that is not located on the subject parcel is approximately 320 feet southwest of the site on the property identified as Tax Map 74 - Parcel 2B, and the proposed site of the monopole is located 54 feet from that boundary line.  The facility will be accessed by 10-foot wide gravel service road that extends north to the existing Alltel facility site from the driveway serving the residence on the property.

 

The proposed facility would be located near the edge of the woods, and most of the significantly sized trees are situated downhill from the site.  The applicant’s petition and plans cite the presence of a 76-foot tall Black Walnut tree (712.2 feet ASL), which is approximately 16 feet away from the proposed location of the monopole, as the reason for requesting a monopole height of 85 feet (720 feet ASL).  The site of the proposed facility is a sparsely wooded area that is situated at a ground level elevation of 635.6 feet AMSL and a finished ground elevation of 637.2 feet AMSL.  The 75-foot tall monopole for the existing facility is situated approximately 50 feet northeast from the location of the monopole proposed for this facility, which is centrally located  between the side property lines and at the 630-foot contour interval.

 

During a field visit, staff observed that a balloon floated at the height of the proposed monopole was visible above the tops of the trees from the portion of roadway that spans the distance between the entrances for Rosemont and the subject parcel Route 637 (Attachment D).  While observing the test from static points on the property sharing the western boundary of the subject parcel, the balloon appeared to extend well above the treetops.  This indicates that a rather large portion of the monopole would be “skylighted” from the road and from some of the properties located to the south and west of the site.  Staff also determined that neither the existing monopole nor the balloon could be seen from the right-of-way for I-64.

 

Comprehensive Plan:

 

Staff notes that the proposed construction and service road extension for access to the proposed facility would not require the clearing of any substantial vegetation.  Therefore, this request is being reviewed for compliance with the recommendations of the Comprehensive Plan that are mainly focused on the visual impacts that could result from the presence of the facility’s monopole in the proposed location.  The Personal Wireless Service Facilities Policy is the component of the Comprehensive Plan that provides specific guidelines for the siting and review of personal wireless service facilities.  Both the Open Space Plan and Chapter 2 of the Comprehensive Plan, entitled Natural Resources and Cultural Assets, provide staff with the guiding principles for managing the County’s natural, scenic and historic resources, and for the preservation and conservation of those resources in order to protect the environment for future use.

 

Personal Wireless Service Facilities Policy:

 

The guidelines set forth in the Personal Wireless Service Facilities Policy are focused largely on reducing the visual impacts of these facilities from surrounding properties and roadways.  The Wireless Policy recommends the implementation of a three-tiered approval system to address criteria related to the siting and design of new facilities.  The first tier sets a preference for the development of “stealth” facilities that can either be completely concealed within existing structures, or attached to existing conforming structures.  Tier Two calls for sites that are designed to blend in with the natural surroundings in a manner that mitigates their visual impacts.

 

The standard conditions of approval for Tier Two wireless facilities require the use of brown, treetop monopoles that are no more than 10 feet above the tallest tree within 25 feet, and related ground equipment housed cabinets and buildings that are painted brown.  When siting these facilities there is preference for using structures that are no taller than the natural tree canopy so that they are not “skylighted” against the horizon so that they alter ridgelines.  Although the applicant has submitted this proposal in accordance with the recommended criteria for Tier Two facilities, staff has not determined that those criteria alone would be adequate enough to mitigate the anticipated negative impacts of the facility.

 

Open Space Plan and Chapter 2:

 

Chapter Two of the Comprehensive Plan, entitled Natural Resources and Cultural Assets, provides guidance for protecting the County’s natural, scenic and historic resources, and sets the goals for preserving and managing those resources and the environment for future use.  The Open Space Plan Concept Map provides an inventory that assists with identifying the areas where critical resources are present throughout the County.  This site lies within the area designated as Rural Area 3 by the Comprehensive Plan and is part of a larger area designated as forests by the Open Space Plan Concept Map.

 

The Open Space Plan identifies forests within Rural Areas as large areas that are contiguous with other forests or farmlands, have the best soils for hard woods, and are not in subdivisions.  When existing structures are not available, the recommendations set forth in the Wireless Policy favors the practice of locating new facilities in forested areas where monopoles and ground equipment can be designed to blend in well with the natural surroundings.  While observing the balloon test for this proposal, staff was able to determine that due to its location in relation to those boundary and tree lines, a large portion of the monopole for this facility would be visible from at least one adjoining parcel and Route 637.

 

RECOMMENDATION

 

Staff has reviewed this request for compliance with the provisions of Section 31.2.4.1 of the Zoning Ordinance and recommends denial as proposed.

 

STAFF COMMENT:

 

Staff will address the issues of this request in four sections:

 

1.                                          Section 31.2.4.1 of the Zoning Ordinance;

2.                                          Section 704 (a)(7)(b)(I)(II) of the Telecommunications Act of 1996; and,

3.                                          Section 4.10.3.1of the Zoning Ordinance.

 

1.         Staff will address each provision of Section 31.2.4.1 of the Zoning Ordinance.

 

The Board of Supervisors hereby reserves unto itself the right to issue all special use permits permitted hereunder.  Special use permits for uses as provided in this ordinance may be issued upon a finding by the Board of Supervisors that such use will not be of substantial detriment to adjacent property,

 

The nearest dwelling to this site that is not located on the subject parcel is approximately 320 feet from the site of the proposed facility proposed facility on property identified as Tax Map 74 - Parcel 2B.  Construction plans indicate that this facility would be located closer to the subject parcel’s western boundary that is shared with that parcel than the existing facility.  The proposed facility site is also near the edge of the treeline, and based on the balloon test there are not any significantly sized trees between it and the adjacent parcel to adequately screen the view of the top half of the proposed monopole from that dwelling.  Furthermore, staff has also determined that a rather large portion of the facility would be visible above the trees from parts of the State Route 637 right-of-way, and some properties in the Rosemont subdivision.

 

Staff has determined that a rather large portion of the proposed monopole would extend above the trees tops of the surrounding forests when viewed from at least one adjacent property and the road upon which the subject parcel has frontage.  This would result in the introduction of a facility that It is the extent to which the monopole would be extend above the trees from those nearby points that causes the a substantial amount of concern for the visual impacts of this request.  With consideration for the visual impacts, it is staff’s opinion that the proposed facility could be considered to be detrimental to adjacent properties.

 

that the character of the district will not be changed thereby,

 

The applicant’s request indicates that Nextel service personnel would normally travel to the site once a month for routine maintenance and service visits.  It is also anticipated that some unscheduled visits to the site will be necessary when electrical power has been interrupted by any unexpected factors, such as adverse weather.  However, once the facility has been constructed and is fully operational, staff does not expect that any of those site visits would create a significant increase in activity or traffic within the area.

 

Support for locating facilities that comply with the Wireless Policy in the Rural Areas zoning district is not uncommon.  The key purpose of the County’s Wireless Policy is to site these facilities in locations where there is minimal potential for intrusion upon the naturally existing conditions in surrounding areas.  Staff notes that in the review of past proposals for multiple personal wireless service facilities on a single property concern has often been expressed for the adverse impacts that could arise from the proliferation of facilities within a given area.  This is because of the likelihood for increasing the impact of existing facilities with marginal visibility by introducing additional ones that could attract attention that would not otherwise be drawn. 

 

Whenever requests to allow horizontal co-locations are being reviewed, staff also attempts to ensure that the tree conservation areas for existing facilities are not altered to a extent that the treeline and tree canopy helping to camouflage their mounting structures and ground equipment would be compromised.  The applicant has provided a tree conservation plan and tree identification map, both of which were prepared by an arborist to show the locations of trees surrounding the existing Alltel facility.  In this case staff also recognizes that the successful screening of the existing facility relies heavily upon three trees that are located well outside of the lease areas for either facility.  However, none those trees or nearby trees surrounding the proposed monopole site would provide a level of screening that is comparable to that provided for the existing facility. 

 

The implied concerns with horizontal co-locations are magnified even greater in this case because of the relatively small size of the subject parcel and the expanded tree conservation area that was created for the existing facility.   Therefore, when compared to the limited visual impacts of the existing well-screened facility, it is staff’s opinion that the proposed facility could have the effect of changing the character of the district.

 

and that such use will be in harmony with the purpose and intent of this ordinance,

 

Staff has reviewed this request with consideration for the purpose and intent of the Zoning Ordinance as stated in Section 1.4, and with further reference to Section 1.5.

 

Section 1.4.3 states, “To facilitate the creation of a convenient, attractive and harmonious community,” as an intent of the Ordinance.  As evidenced by the expanded and rapid increase in use, mobile telephones clearly provide a public service, and the establishment of wireless service facilities expands the availability of communications opportunities and convenience for users of wireless phone technology.  In the event of emergencies, the increased access to wireless communication opportunities is consistent with the accepted principles of public health, safety and general welfare.  Although existing wireless facilities have not often been credited for enhancing the visual appearance of the surrounding areas, the guidelines of the Wireless Policy are intended to ensure that equipment for those facilities are not responsible for negatively intruding upon the important natural resources that promote the attractiveness of the community.

 

Section 1.5 (Relation to Environment) states, in part, that the “ordinance is designed to treat lands which are similarly situated and environmentally similar in a like manner with reasonable consideration for the existing use, and character of properties, the Comprehensive Plan, the suitability of property for various uses…”  Whenever, personal wireless service facilities can be designed and sited properly, it has not been demonstrated that these types of uses present any extensive conflict with the agricultural and forestal objectives that have been set forth for the Rural Areas.  Furthermore, there is already an existing facility located on the subject parcel, near the proposed site of this facility that has been strategically designed and installed to blend well with its natural surroundings.  However, due to a combination of the size of this parcel and the wooded area surrounding the, there does not appear to be many trees that are similar to the height of the proposed monopole that could provide adequate screening or camouflaging.  Therefore, it is staff’s opinion that the newly proposed facility would not be appropriate at this site.

 

            with the uses permitted by right in the district,

 

Aside from restrictions on tree cutting within a certain distance of the facility, approval of this proposal would not act to restrict any of the current uses on the subject parcel, or by-right uses allowed on any other properties within the Rural Areas district.

 

with additional regulations provided in Section 5.0 of this ordinance, and with the public health, safety and general welfare.

 

Section 5.1.12a of the Zoning Ordinance contains regulations for locating public utility structures in a manner which “will not endanger the health and safety of workers and/or residents in the community and will not impair or prove detrimental to neighboring properties or the development of the same.” Staff has addressed the concerns for possible negative environmental and visual impacts upon neighboring properties throughout this staff report.  The Federal Communications Commission’s (FCC) regulations set forth in the Telecommunications Act of 1996 address the most significant concerns for the public health and safety related to personal wireless services. 

 

The Ordinance also contains section 5.1.40, which sets the requirements for the submittal, review and approval of applications for personal wireless service facilities.  Section 5.1.40b(2) authorizes the Director of Planning and Community Development to allow a facility to be constructed closer to any lot line than the height of its mounting structure, if the applicant acquires an easement from the owner of the adjoining property that lies within the facility’s “fall zone”.  However, with this proposal the applicant is instead requesting Planning approval for a waiver of the setbacks related to structure height, in accordance with Section 4.10.3.1(b) of the Ordinance.  Staff has addressed this request in a separate section of the report.

 

2.         Section 704(a)(7)(b)(I)(II) of The Telecommunications Act of 1996:

 

            The regulation of the placement, construction and modification of personal wireless facilities by any state or local government or instrumentality thereof shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

 

The Telecommunications Act addresses concerns for environmental effects with the following language, “No state or local government or instrumentality thereof may regulate the placement construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commissions’ regulations concerning such emissions.”  In order to operate this facility, the applicant is required to meet the FCC guidelines for radio frequency emissions.  These requirements will adequately protect the public health and safety.

 

Neither the Comprehensive Plan nor the Zoning Ordinance prohibits the provision of personal wireless services.  However, both do implement policies and regulations for the siting and design of personal wireless facilities.  The applicant has not provided any information to demonstrate the availability, or lack thereof, of any alternative sites to serve the areas that would be covered by the proposed facility at this site.  Therefore, it is staff’s opinion that the denial of this application would not have the effect of prohibiting the provision of personal wireless communication services.

 

3.         Waiver of the setback in accordance with Section 4.10.3.1

 

Section 5.1.40.b(2) states:

 

"Notwithstanding Section 4.10.3.1(b) of this chapter, the director of planning and community development may authorize a facility to be located closer in distance than the height of the structure to any lot line if the applicant obtains an easement acceptable to the county attorney prohibiting development on the part of the abutting lot sharing the common lot line that is within the facility’s fall zone.”

 

The applicant’s proposal includes the installation of the 85-foot tall monopole structure within 54 feet of property line, which is shared with Tax Map 74 - Parcel 2B.  Based on the requirements of Section 4.1.3.1(b) the structure should be set back 85 feet from the western property line.  However, instead of pursing a fall zone easement, the applicant is requesting approval of a waiver in accordance with Section 4.10.3.1(c).  This section allows the Planning Commission to modify or waive the setback requirements related to the heights of mounting structures for personal wireless services and similar facilities upon determining that the public health, safety or welfare would be equally or better served.

 

It is staff’s opinion that the setback provision of Section 4.10.3.1 is designed to prevent undue crowding of the land and to prevent safety hazards if a structure should fall.  Although staff has received no opposition from the owner of that adjoining parcel, it should be noted that the 31-foot fall zone intrusion of the proposed facility would extend 6 feet beyond the standard 25-foot Rural Areas side yard setback on the adjacent parcel.  Furthermore, the parcel line from which this setback waiver would allow relief is shared with the same property that is most likely to be affected by the visual impacts of the proposed facility.  Therefore, staff recommends denial of the waiver as requested.

 

If the Planning Commission supports the special use permit on the basis of its evaluation for compliance with the provisions of Section 31.2.4.1, approval of this modification is appropriate.  However, if the Commission votes to deny this request, the applicant may appeal the decision in conjunction, as allowed by Section 4.10.3.1.d(1).

 

SUMMARY: 

 

Staff has identified the following factors, which are favorable to this request:

 

1.                  The facility would not restrict any of the permitted and uses on adjacent properties; and, 

2.                  This site is accessed from an existing driveway that would be extended across a mostly grassed area that requires minimal grading.

 

The following factors are relevant to this consideration:

 

1.                  There is an existing Tier II personal wireless facility located on the subject parcel;

2.                  The applicant has already submitted tree conservation plan prepared by a certified arborist to address any expected impacts upon the trees surrounding both facility sites;

3.                  The parcel proposed as the site for this facility only contains 2.78 acres;

4.                  The “fall zone” of the monopole proposed with this site extends 31 feet across the boundary line shared with an adjacent property; and,

5.                  The standard 200-foot tree conservation area surrounding the improvements for this facility would extend beyond the boundaries of the subject parcel.

 

Staff has identified the following factors, which are unfavorable to this request:

 

1.                  The proposed monopole would be at least 10 feet taller than the one serving the existing facility on the subject parcel;

2.                  The monopole would be skylighted from parts of State Route 637;

3.                  A large portion of the monopole would be skylighted and unscreened from at least one adjacent property located to the west of the site; and,

4.                  The fall zone of the proposed monopole extends into the side yard setback of an adjoining property.

 


RECOMMENDED ACTION:

 

This request has been submitted in compliance with the criteria that is set Tier II personal wireless service facilities.  However, the proposal does not satisfactorily address the policy’s goals for limiting adverse visual impacts.  It is staff’s opinion that the concern for those impacts that would result from the proposed facility in this particular location outweigh the level of convenience that would be provided with the increased access to personal wireless services.  There is an existing facility on the subject parcel that was designed and located to take advantage of the vegetation surrounding its lease area as well as other tall trees that are located farther outside of the site, substantially mitigating visual impacts.  Due to the rather small size of the subject parcel the proposed facility would not have a level of camouflaging and screening that is comparable to that for the existing monopole, which is also 10 feet shorter.  The applicant has not provided any information to demonstrate the availability, or lack thereof, of any alternative sites to serve the areas that would be covered by the proposed facility.  Therefore, staff recommends denial of the requested special use permit.

 

Should the Board vote to approve the special use permit, staff recommends that the applicant be required to comply with most of the standard conditions of approval that have been established for personal wireless service facilities.

 

(In the event that the Board chooses to deny this application staff offers the following comment:

In order to comply with the provisions of the Telecommunication Act, staff requests consensus direction from the Board regarding the basis for denial of the application and instruction to staff to return to the Board with a written decision for the Board’s consideration and action.)

 

Recommended conditions of approval:

 

The facility shall be designed, constructed and maintained as follows:

 

1.                  With the exception of any minor changes that would be required in order to comply with the conditions listed herein, the facility including the monopole, the ground equipment building, and any antennas shall be sized, located and built as shown on the construction plans entitled, “Nextel Partners - Gallihugh Site”, last revised November 11, 2003 and provided herein, with Attachment A.

2.                  The calculation of pole height shall include any base, foundation or grading that raises the pole above the pre-existing, natural ground elevation.

3.                  The top of the pole, as measured Above Mean Sea Level (AMSL), shall never exceed seven (7) feet above the top of the tallest tree within 25-feet tree, identified as T-20 on Sheet C-4 of the construction plans.  In no case shall the pole exceed 85 feet above the existing ground elevation at the time of installation without prior approval of an amendment to this special use permit or personal wireless facility permit.

4.                  The metal monopole shall be painted a brown wood color that is consistent with the trees surrounding the site.

5.                  The ground equipment cabinets, antennas, concrete pad and all equipment attached to the pole shall be the same color as the pole and shall be no larger than the specifications set forth in the application plans.

6.                  Only flush-mounted antennas shall be permitted.  No antennas that project out from the pole beyond the minimum required by the support structure, shall be permitted.  However, in no case shall the distance between the face of the pole and the faces of the antennas be more than 12 inches.

7.                  No satellite or microwave dishes shall be permitted on the monopole.

8.                  No antennas or equipment, with the exception of a grounding rod, not to exceed one-inch in diameter and twelve (12) inches in height, shall be located above the top of the pole.

9.                  No guy wires shall be permitted.

10.              No lighting shall be permitted on the site or on the pole, except as herein provided.  Outdoor lighting shall be limited to periods of maintenance only.  Each outdoor luminaire shall be fully shielded such that all light emitted is projected below a horizontal plane running though the lowest part of the shield or shielding part of the luminaire.  For the purposes of this condition, a luminaire is a complete lighting unit consisting of a lamp or lamps together with the parts designed to distribute the light, to position and protect the lamps, and to connect the lamps to the power supply.

11.              The permittee shall comply with section 5.1.12 of the Zoning Ordinance.  Fencing of the lease area shall not be permitted.

 

Prior to the issuance of a building permit, the following requirements shall be met:

 

12.              Size specifications and other details, including elevation drawings of the antennas and ground equipment shall be included in the construction plan package.

13.              Certification by a registered surveyor stating the height of the reference tree that has been used to justify the height of the monopole shall be provided to the Zoning Administrator.

14.              Prior to beginning construction or installation of the pole, the equipment cabinets or vehicular or utility access, an amended tree conservation plan, developed by a certified arborist shall be submitted to the Zoning Administrator for approval.  The plan shall specify tree protection methods and procedures, and identify any existing trees to be removed on the site - both inside and outside the access easement and lease area.  All construction or installation associated with the pole and equipment pad, including necessary access for construction or installation, shall be in accordance with this tree conservation plan.  Except for the tree removal expressly authorized by the Director of Planning and Community Development, the permittee shall not remove existing trees within two hundred (200) feet of the facility.  A special use permit amendment shall be required for any future tree removal within the two hundred-foot buffer, after the installation of the subject facility.

15.              With the building permit application, the applicant shall submit the final revised set of site plans for construction of the facility.  During the application review, Planning staff shall review the revised plans to ensure that all appropriate conditions of the special use permit have been addressed.

 

After the completion of the pole installation and prior to the issuance of a Certificate of Occupancy or to any facility operation, the following shall be met:

 

16.              Certification by a registered surveyor stating the height of the pole, measured both in feet above ground level and in elevation above sea-level (ASL) using the benchmarks or reference datum identified in the application shall be provided to the Zoning Administrator.

17.              Certification confirming that the grounding rod’s: a) height does not exceed two feet above the tower; and, b) width does not exceed a diameter of one-inch, shall be provided to the Zoning Administrator.

18.              No slopes associated with construction of the facility shall be created that are steeper than 2:1 unless retaining walls, revetments, or other stabilization measures acceptable to the County Engineer are employed.

 

After the issuance of a Certificate of Occupancy, the following requirements shall be met:

 

19.              The applicant, or any subsequent owners of the facility, shall submit a report to the Zoning Administrator by July 1 of each year.  The report shall identify each personal wireless service provider that uses the facility, including a drawing indicating which equipment, on both the monopole and the ground, are associated with each provider.

20.              All equipment and antennae from any individual personal wireless service provider shall be disassembled and removed from the site within ninety (90) days of the date its use is discontinued.  The entire facility shall be disassembled and removed from the site within ninety (90) days of the date its use for personal wireless service purposes is discontinued. If the Zoning Administrator determines at any time that surety is required to guarantee that the facility will be removed as required, the permittee shall furnish to the Zoning Administrator a certified check, a bond with surety satisfactory to the County, or a letter of credit satisfactory to the County, in an amount sufficient for, and conditioned upon, the removal of the facility.  The type of surety guarantee shall be to the satisfaction of the Zoning Administrator and the County Attorney.

 

ATTACHMENTS:

 

A -       Application, Construction Plans and Additional Information

B -       Parcel, Location and Aerial Maps

C -       Approval Letter Existing Alltel Facility

D -       Balloon Test Photos

E -       Zoning Department Comments

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