STAFF PERSONS: Stephen Waller
PLANNING COMMISSION: APRIL 20, 2004
Origin: The original resolution of intent to amend the zoning ordinance for implementation of the Comprehensive Plan’s recommended regulations of a three-tiered review and approval process for Personal Wireless Service Facilities was adopted by the Planning Commission at its meeting on February 3, 2004.
PROPOSAL: The proposed ordinance is for the amendment of Sections 3.1, Definitions, 5.1.40, Personal wireless service facilities, 10.2.1, By right, 10.2.2, By special use permit, 12.2.1, By right, 12.2.2, By special use permit, 13.2.1, By right, 13.2.2, By special use permit, 14.2.1, By right, 14.2.2, By special use permit, 15.2.1, By right, 15.2.2, By special use permit, 16.2.1, By right, 16.2.2, By special use permit, 17.2.1, By right, 17.2.2, By special use permit, 18.2.1, By right, 18.2.2, By special use permit, 19.2.1, By right, 19.2.2, By special use permit, 20.3.1, By right, 20.3.2, By special use permit, 20A.6, Permitted uses, 22.2.1, By right, 22.2.2, By special use permit, 23.2.1, By right, 23.2.2, By special use permit, 24.2.1, By right, 24.2.2, By special use permit, 25.2.2, By special use permit, 27.2.1, By right, 27.2.2, By special use permit, 28.2.1, By right, 28.2.2, By special use permit, 220.127.116.11.1, By right within the floodway, 18.104.22.168.1, By special use permit within the floodway, of Chapter 18, Zoning, of the Albemarle County Code. This proposed amendment would define terms related to personal wireless service facilities, establish a three-tier process for reviewing applications for personal wireless service facilities based upon prescribed criteria, and allow personal wireless facilities by right or by special use permit in the identified zoning districts depending on the tier under which the facility qualifies (Attachment A).
PUBLIC PURPOSE TO BE SERVED: This amendment to the Zoning Ordinance is being proposed for the purpose of implementing the three-tiered system of review as recommended by the Personal Wireless Service Facilities Policy.
Background: The Board of Supervisors adopted the Personal Wireless Service Facilities Policy as a component of the Comprehensive Plan on December 6, 2000. The Policy establishes the County’s guidelines for the siting and design of these facilities with respect for the County’s important natural, historic and scenic resources, and consideration for the regulations established by the Federal Telecommunications Act of 1996. The existing regulations pertaining personal wireless service facilities, found in Section 5.1.40 of the Zoning Ordinance, were adopted by the Board of Supervisors on October 17, 2001. These regulations set the minimal application standards, general regulations and the regulations that are applicable to facilities attached to existing structures.
Description of Proposed Modifications: Some of the more substantive ordinance changes that are being proposed are:
· [Section 3.1] Addition or revision of the following definitions: Antenna array, Avoidance area, Personal wireless service facility, Reference tree, Ridge area, Ridgeline, Skylighting, Tier I facility, Tier II facility, Tier III facility, and Treetop facility.
· [Section 5.1.40.a(4-b)] Amends the requirement for benchmarks and datum used for elevations and horizontal coordinates to match those used for the County’s Geographic Information System.
· [Section 5.1.40.a(5)] Adds requirement for submitting photos of the area surrounding a proposed facility site and any existing facilities within 200 feet of a new facility site.
· [5.1.40.a(6-b)] Requires the location of the access road, lease area, tower site and the tallest tree within 25 feet to be clearly marked in the field for identification during balloon tests.
· [5.1.40.b] Requires VDOT review for facilities whose “fall zones” extend into the public road right-of-way rather than the easement requirement.
· [5.1.40.c] Tier I Regulations (By-right with Building Permit)
· [5.1.40.d] Tier II (By-right with Planning Commission Approval)
· [5.1.40.e] Tier III (Special Use Permit)
· Allows Tier I facilities by right in all existing zoning districts.
· Allows Tier II facilities by right in all existing zoning districts.
· Allows Tier III facilities by special use permit in all existing zoning districts.
Discussion: These zoning ordinance amendments are intended to enact certain regulations that are considered to be necessary by the Comprehensive Plan and to provide regulations for the various ways that personal wireless service facilities are installed throughout the County. Most importantly, under the recommendations of the Personal Wireless Service Facilities Policy, the proposed amendments will introduce the criteria for Tier I facilities, formerly identified as by-right use facilities attached to existing structures; Tier II facilities, otherwise known as treetop facilities that are allowed by right with Planning Commission approval; and, Tier III facilities that will continue to be allowed only by special use permit approval. Together these three tiers are referred to as the “Regulatory Concepts for Applications” that are recommended by the Policy for the review of facilities. Several definitions found in the Policy are also being added to the Zoning Ordinance, and several of the existing regulations that are related to personal wireless service facilities are also being revised.
In addition to the regulations that are being developed with consideration for recommendations from the Policy, general conditions that have been applied to the approvals of personal wireless service facilities through the special use permitting process and issuance of building permits for by-right personal wireless service facilities are also being implemented. Furthermore, some of the proposed changes give consideration for suggestions and requests that were provided by various representatives of the personal wireless communications industry who attended a staff-facilitated focused group discussion on December 4, 2003 and Planning Commission work session on February 24, 2004 (Attachment B).
Staff response to public comments: This section summarizes the comments, questions and concerns that resulted from the work session on February 24, followed by a staff response.
From the letter from Tremblay & Smith, dated February 24, 2004:
Avoidance areas: Staff notes that neither the definition of avoidance area, nor the three-tiered criteria prohibit the installation of facilities in avoidance areas. However, they would instead subject facilities within avoidance areas to the special use permitting process, which provides greater scrutiny with consideration for the Comprehensive Plan than the Tier II review process. It is staff expectation that applicants would continue to choose sites that best suit their coverage objectives, whether they are located within avoidance areas, or not.
Staff Comment: This requirement is recommended for the purpose of addressing the concerns for visual impacts that may arise when multiple facilities are located within a small geographic area, otherwise known as tower farms. Aside from the most obvious concern for installing several man-made structures within the natural landscape, additional consideration must be given for the impacts of construction activity upon trees that are important in providing camouflaging or screening for existing facilities. Furthermore, there may be several instances in which a facility may be appropriately sited on a rather small parcel, but additional facilities would have impacts that could not easily be addressed through the application of the requirements for Tier II facilities. Therefore staff does not recommend the removal of this provision.
Staff Comment: The Policy defines avoidance areas as areas that have resources of significance to the County and where the unwise siting of personal wireless service facilities could result in adverse impacts. The Policy clearly designates state scenic highways, by-ways and rivers, and national parks and forests as avoidance areas. However, it is not very likely that any facilities would ever be proposed directly within the geographic confines of these resources, and many of the qualities that help establish them as important resources are often located on adjacent lands. Therefore, staff recommends that appurtenant lands within 200 feet of scenic highways, by-ways and rivers, and national parks and forests be considered as avoidance areas as well.
Response: This has been done.
Staff Comment: The by-right attachments to existing structures are allowed under the criteria for Tier I facilities with an expectation that the appearance of structures as they currently exist will not be substantially changed. Conventional flagpoles are normally exempt from building permits because of the structural capacity and loading requirements that are only required to hold flags. At a minimum, structures strong enough to hold the loads of antennas and cables serving personal wireless facilities that are currently being used would have to be similar to the sizes of the monopoles that are used for the treetop facilities. Therefore, it is staff’s opinion that these structures would not even have the appearance of conventional flagpoles, despite any attempts at camouflaging or hiding the antennas.
Staff Comment: The “Regulatory Concepts for Applications” of the Personal Wireless Service Facilities Policy serve as the basis for this zoning ordinance amendment. Those concepts clearly recommend that Tier II facilities may be attached for to a structure that is “no more than 10 feet above the tallest tree within 25 feet of the proposed structure.” In no way does this statement guarantee that a total height of 10 feet will be allowed in every case, as the limitation of visual impacts is repeatedly stated as the key goal of the Policy and the resulting zoning regulation.
Additional Comments: Based on concerns that were expressed by the Planning Commission and with consideration for standards that have been set for acceptable heights in past reviews for existing treetop facilities, Section 5.1.40.d(5) has been revised. The recommended language in this section now restricts Tier II treetop facilities to no more than 7 feet above the tallest tree within 25 feet. However, the Commission could allow the height to be extended to 10 feet upon finding that physical constraints require the monopole to be more than 7 feet taller than that tree; there is material difference between the visibility of the monopole at the proposed height, rather than at a height o 7 feet taller than the tallest tree; and there is not a material difference in adverse impacts to resources identified in the Open Space Plan caused by the monopole at the proposed height rather than a height of 7 feet taller than the tallest tree.
Staff Comment: It is staff’s opinion that requiring the locations of existing improvements to be shown on the plans is not only important for review purposes. This information is also helpful in assisting zoning inspectors and other official who where not involved in the original review of the proposal to locate the sites. Furthermore, it is expected that the although the dimensions for all of the existing accessory structures, such as barns and garages would not be necessary their approximate locations would provide important landmarks and the adequacy of the accuracy to which they are shown would ultimately be subject to the reviewer.
Staff Comment: The easement requirements also apply to facilities using wood monopoles that are not designed to collapse within a given area. Under Section 22.214.171.124(b), applicants will continue to have an opportunity to request Planning Commission approval of a waiver of the height to distance setbacks. It is staff’s opinion that any exemption based on the engineering information related to the manner in which metal monopoles could be better suited to these waiver requests in specific situations.
Staff Comment: This has not been done as Tier I facilities are reviewed and approved by right under the standard review of a building permit. These facilities can not be approved until all building codes have been satisfied, in addition to any relevant requirements from the zoning ordinance and utility companies. By policy, the Department of Building Code and Zoning Services attempts to maintain a standard of issuing building permit within 10 days of filing a complete application. However, a timeline that is consistent with that required for site plans as set forth in Section 126.96.36.199 has been set for Tier II facilities.
Staff Comment: These limitations do not restrict the attachment of more than three antennas arrays to an existing structure, but instead require special use permit approval by the Board of Supervisors under the Tier II criteria for any more than three arrays. This is because most of the existing structures that can accommodate the co-location of several facilities usually already have a high level of visibility. Adding more antennas to a structure can increase its bulk, or alter its roofline, ultimately augmenting the visual impacts of the structure.
Staff Comment: Staff has provided a definition for antenna array, based upon mounting height and the user of antennas in the array to Section 3.1. Further clarification is provided under the requirements for Tier I facilities in the explanation all types of transmittal attachments are counted toward the limitations regardless of their use.
Response: This has been done with an understanding that the widths of antennas on Tier II monopoles will be limited by there ability to meet the requirement for flush mounting (no more than 12 inches from the pole to any point on the face of the antenna).
Staff Comment: The tree conservation area is intended not only to assist in screening the monopole itself. This area is also supposed to ensure that the landscape surrounding facilities remains in its natural state to the greatest extent possible. Furthermore, the conservation plan does not prohibit the removal of trees, but instead attempts to limit tree removal to that which is necessary for providing access to the site, installing utilities and constructing the facility.
Response: This information has been discussed with the possibility of authorizing either Zoning Administrator to require that some form security be posted either when the yearly reports have not been submitted, or power has been disconnected indicating that a facility is no longer being used. Staff is continuing to work on this issue and will attempt to provide further alternatives for consideration at the Planning Commission meeting.
Staff Comment: It is staff’s opinion that this language is important as it allows staff to work with an applicant to make necessary adjustments based on plan review and field observations. This requirement is intended to help work beyond approval of applications that simply meet all of the minimum standards for filing and toward facilities with acceptable site design as well.
From the e-mail from Debbie Balser, dated March 5, 2004
Response: Aside from consistency in situations where horizontal co-location has been proposed and wood monopoles are already in place, staff has recognized no particular preference for wooden as opposed to metal monopoles in past approval. The recommendation for requiring color samples prior to approval, as provided in Section 5.1.40.a.4(d), may assist in addressing concerns for the possibility of reflective coating on metal poles.
Response: The Ridge Area maps and other maps identifying important resources are components of the Comprehensive Plan that are expected to change more regularly than the Zoning Ordinance. Because many sections of the ordinance refer to the Comprehensive Plan for guidance, it is expected that applicants should be able to readily refer to it when necessary.
Response: Staff has provided additional language to Section 5.1.40.d(7) of the most recently revision to the amendment in order to address this concern.
Response: Staff has provided additional language clarifying that this information will only be expected from points where it is possible to gather it.
RECOMMENDATION: Staff recommends amending the Zoning Ordinance relating to personal wireless service facilities as provided in Attachment A.
A - Proposed zoning ordinance text, last revised April 14, 2004.
B - Correspondence from wireless industry representatives (1 letter and 1 e-mail)
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