Agenda Item No. 13.  ZTA-2003-002.  Personal Wireless Service Facilities.  Public hearing on an Ordinance to amend Secs 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, 30.3.5.1.1, By right within the floodway, 30.3.5.2.1, 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, & 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 consistent with the Comprehensive Plan's Personal Wireless Service Facilities Policy.  (Notice of this public hearing was published in the Daily Progress on .)

 

            Mr. Cilimberg said the Board adopted a policy several years ago regarding the provision of personal wireless facilities and that policy became an element of the Comprehensive Plan.  He said this ordinance is the last of a series of Zoning Text amendments which are intended to implement that policy. At its meeting on April 20, 2004, the Planning Commission reviewed and unanimously recommended approval of the proposed amendments to Section 5.1.40 of the Zoning Ordinance, related definitions in Section 3.1, and individual district regulations allowing Tier I and Tier II personal wireless service facilities by right and Tier III personal wireless service facilities by special use permit.  The latest draft of the ordinance (marked amended July 7, 2004), and was included in the Board’s packet of materials for this meeting. 

           

            Mr. Cilimberg said the Commission, in taking this action, requested that there be certain changes made to the draft ordinance to address its specific concerns:

 

  1. Include a provision that would allow an applicant to submit an application for a Tier III facility if the facility was denied as a Tier II facility.  This concern has been addressed in Section 3.1 of the proposed ordinance in the definition for Tier III facilities.

 

  1. Include language enabling an applicant to appeal the denial of a waiver requesting that a Tier II facility be installed more than seven feet, but not more than ten feet, above the tallest tree within 25 feet.  This concern has been addressed in the last sentence of Section 5.1.40.d(5).

 

  1. Include a list of specific criteria and guidelines for the Zoning Administrator to determine whether to require surety for the cost of removing a facility.  These criteria have been added to Section 5.1.40.c(6).

 

  1. Revise the tree conservation requirements to require a tree conservation plan in all cases; the prior draft allowed the applicant to submit a statement that no tree would be removed in lieu of a tree conservation plan.  These revised tree conservation requirements are in Section 5.1.40.c(4).

 

            Mr. Cilimberg said some representatives of the wireless industry expressed concern to the Commission that the proposed definition of "avoidance area" was so broad that virtually all treetop wireless facilities would be classified as Tier III facilities requiring a special use permit (in contrast, a Tier II facility would be approved by the Commission without conditions provided all applicable regulations were satisfied).  Although the Commission briefly discussed this concern, it did not make a recommendation as to whether the definition should be revised.

 

            Mr. Cilimberg said that after the Commission meeting, staff conducted research and found that all of the treetop facilities approved by the Board within the past two years would have been classified as Tier III facilities.  In response to these findings, staff recommends that the definition of "avoidance area" be narrowed to encompass those resources commanding the greatest protection in the Natural Resources and Cultural Assets section of the Comprehensive Plan and the Personal Wireless Service Facilities Policy.  The two criteria deleted from the prior draft are: "any location that would adversely impact any resource identified in the open space plan or a natural resource or cultural asset identified in chapter 2 of the comprehensive plan", and "any location having unlimited visibility."    

 

            Mr. Cilimberg said it is important to clarify the meaning of Tier II and Tier III.  Requiring a Tier III would not change anything in effect at this time.  Distinguishing where that did not need to happen seemed to be important.  Also, having a review by the Commission only was deemed to be important.  This was based on the existing policy, industry comments and the intent of this amendment as discussed with the Commission.  He described the difference between a Tier II and Tier III review.  The closest parallel would be for a by-right Rural Preservation Development of 20 or less lots, and by special use permit for a RPD of over 20 lots.  The Commission reviews all of the RPDs for 20 or less lots under the by-right scenario for a RPD.  That would be the equivalent for a Tier II under this ordinance amendment.  The Commission would review all Tier II requirements.

 

            Ms. Thomas said the Commission cannot deny any of those applications.  Mr. Cilimberg said by-right the petition would have to meet all of the conditions of the ordinance, and it would be subject to approval if it met those conditions. 

 

            Mr. Rooker said this is similar to site plan and subdivision approval.  Mr. Cilimberg said RPDs are unique in that the requirements for them are beyond what is required for normal subdivisions.  The requirements for Tier II facilities are beyond what would be the normal requirement for any tower, and the Tier I facilities as described in the ordinance.  They would have to meet the criteria for Tier II in order to be approved.  It would be a review by the Commission and it would be subject to public input.  The Tier III is subject to approval of a special use permit on which the Board would review and hold a public hearing after receiving a recommendation from the Commission.  The process for Tier II and Tier III would essentially work like the old RPDs by-right and by special use permit.

 

            Mr. Davis said Tier II would be a ministerial process.  Tier III would remain a legislative process.

 

            Ms. Thomas said for the public the process for a Tier II application would be the most frustrating.  The public would be allowed to come to a Commission meeting and speak.  The Commission would be allowed to talk but could not deny any request that met the requirements set out in the ordinance. The public can speak about something that impacts their neighborhood but if it is not contrary to one of the standards written in this amendment, then there if nothing that can be done and the tower can be erected by right.  She thinks that is a scam of a public hearing and a scam of a Commission meeting.  Unless the standards are so carefully written that every possible contingency is covered, the request has to be approved.

 

            Mr. Bowerman asked if that is a bad thing.  The Board is setting up the criteria by which the request will be judged.

 

            Ms. Thomas said that maybe everything the Board and staff have ever been able to think about is a part of this amendment. 

 

            Mr. Tucker said this is similar to a dance hall permit where the permit is granted automatically if the applicant meets all the conditions. 

 

            Mr. Boyd asked why the Commission is going to hold a public hearing if they can’t deny the application.

 

            Mr. Dorrier said there is a difference between ministerial and legislative actions.  This Board takes legislative actions while administration of the Zoning Ordinance is a ministerial function. 

 

            Mr. Davis said approval of a subdivision plat or a site plan is a ministerial action.  The criteria are established by the Board of Supervisors. Then the Commission’s Agent determines if those criteria have been met.  If they have been, the Agent is mandated to approve it.  This is as Ms. Thomas described.  Even though there may be some other impact, unless the regulations have addressed that impact satisfactorily, there is no way for the agent to deny it.  If it has met all the criteria it has to be approved.

 

            Mr. Rooker said the Commission’s acts are always ministerial.  Mr. Davis said they are unless the Commission is making a recommendation. 

 

            Mr. Rooker said they are not making a decision, only forwarding a recommendation.  They have a number of areas where they take action, but they are really ministerial action.  Sometimes they make those decisions against approvals.  There are things over which the Commission has some leeway in making their interpretation as to whether requirements have been met.  In this case, he wonders the value of the Tier II request to the Commission since it takes time for the Commission to review the request, and it costs the applicant money to bring the request to the Commission. 

 

            Mr. Dorrier said it also ties up staff. 

 

            Mr. Rooker said there is also the public, as Ms. Thomas pointed out, giving input on a decision that will be made based on a form or checklist. 

 

            Ms. Thomas asked what the Commission could do to a Tier II request.  She thinks the difference between seven and ten feet is one example. 

 

            Mr. Cilimberg said they could require 10 feet rather than seven based on criteria which had not been met.  In his experience as Planning Director, subdivision and site plan review are the toughest for the Commission because of the reasons mentioned tonight.  He has found that the Commission sometimes makes a different interpretation of the standards than that made by staff.  Whether that was appropriate has never been called into question.  Staff’s review is based on certain things, and the Commission has from time to time made a different interpretation and they have exercised that latitude.  That could happen with the Tier II facilities.  He expects that would happen from time to time because in the past some of the conditions recommended by staff have been modified by the Commission.  There is limited discretion in interpreting some of the criteria and standards that the Commission would view differently than staff. 

 

            Mr. Bowerman said he does not remember why the Board is looking at this policy again.  Mr. Cilimberg the policy is set out in the Comprehensive Plan, but it has never been codified. 

 

            Mr. Rooker said this will basically codify the conditions that have, over many years, become standard conditions.  Mr. Cilimberg said they have been vetted so much through the years with the different decisions of the Commission and Board that the conditions have actually benefited by the time that has passed.  It is now time to codify those conditions in a precise way.  Those conditions have become the standards the Board uses in virtually all approvals, but they do get tweaked every now and then.

 

            Mr. Rooker said this is good in that the applicant can look at the ordinance and see the requirements.  Mr. Tucker said placing a mobile home in the County used to require a special use permit.  All the requests came to the Commission and the Board and the same conditions were applied to almost every request.  Then someone asked why this was being done, and the use was made a matter of right, but the petition had to meet all those conditions.  That is the same sort of change being recommended in this case.  Everyone knows what conditions are being recommended, so just make them a part of the ordinance so the applicant can move forward as long as they can meet those conditions.  

 

            Mr. Boyd said that has been his observation over the last six months.  They are the same conditions each time.

 

            Mr. Cilimberg said if the Board does not feel the Commission’s review of a Tier II application is necessary, then Tier II is not needed.  Everything in Tier II can be moved to Tier I.  However, that is not the way it was set out in the policy, and was not the way staff looked at it with the Commission. 

 

            Mr. Davis said the ordinance does not require a public hearing by the Commission.  It is the same as for a site plan or subdivision plat, there is no advertised public hearing for these types of actions.  By practice, the Commission has these things on their agenda, and they allow public input, but that is not codified as part of the ordinance.  Any denial by the Commission of a Tier II requires the Commission to specify what would be required for it to be approved, the same as a site plan or subdivision, and, similarly, if the applicant disagrees with the Commission, they can appeal to the Board of Supervisors.  That ministerial decision can be bumped up to the Board to make the decision. 

 

            Mr. Dorrier asked if there is a public hearing required for subdivisions and site plans.  Mr. Davis said there is not.  Notice is given to the adjacent property owners and that gives them an opportunity to provide input before or at the meeting, but it is not a legally required public hearing.

 

            Ms. Thomas said she asked staff in an E-mail this afternoon to give the Board some examples.  She said if the Board were to approve the draft ordinance dated April 14, 2004, every request seen by the Board over the last two years would have been regarded as a Tier III.  Two lines in the definition of “avoidance area” have been deleted from the draft dated July 7, 2004 (“... any location that would adversely impact any resource identified in the open space plan or a natural resource or cultural asset identified in chapter two of the comprehensive plan;” and, “any location having unlimited visibility;....”).  This creates a situation where not all of the requests seen in the last two years would be a Tier III.  She asked which requests would not come to the Board using the new ordinance.

 

            Mr. Stephen Waller, Senior Planner, said of the six totally new requests, without this language, three of those six would fall under the Tier II criteria. 

 

            Ms. Thomas asked which three would have been considered a Tier II.  Mr. Waller said they are:  1) Canody - Moores Creek.  The location is on Route 29 South in the northbound lane.  It is 30 feet from the right-of-way within a nicely wooded area.  It would be a Tier III request because the property is located in an Entrance Corridor regardless of whether or not the ARB had given the request a favorable recommendation.  2) Verulam Farm – the first request would have been a Tier II were it not located within the Entrance Corridor.  3) Vest.  This request originally went to the Commission with a recommendation for denial, but after the Commission worked through the request, it came to this Board with a recommendation for approval.  That location is off of the northbound lane of Route 29 South, very far to the south of the County.  This request would have qualified as a Tier II request as well. 

 

            Mr. Waller said some older requests which would have qualified as a Tier II are:  1) The original Bellair facility that is located next to the road, but which many people say they cannot see when driving on Route 29 South.  It would be a Tier III request because the land lies in the Entrance Corridor.  2) The second Bellair facility would be a Tier III because it is located within 200 feet of the first tower.  3) The original Herring site would have been a Tier II facility because it lies across the road from a scenic overlook.  There are now four towers located on that property and the additional towers would have been Tier III facilities.  The original requests had a 200-foot tree conservation area requirement.  If a request for an additional tower is within 200 feet of that first tower, it affects that conservation area.  Those requests would require additional attention as opposed to the first request for a tower going on a site staff considers a good site. 

 

            Ms. Thomas said those five requests mentioned would be Tier II under the current proposal.  Mr. Waller said that is correct. 

 

            Mr. Rooker said that is because of the entrance corridor.  Mr. Waller said it also because forest and farm lands are identified as an open space resource for protection.  Tier II is ideal for forested areas.

 

            Mr. Bowerman said the Board knew the tower would work in the entrance corridor based on the approvals sent to it by the Commission.  What value is there in having the Architectural Review Board do what they do?

 

            Mr. Rooker asked what would prevent a tower from being located 20 feet off of the right-of-way.  If “entrance corridor” is taken out of “avoidance area”, the Board would not be looking at the request.  It would become a ministerial decision.  Mr. Cilimberg said that is if all the criteria were met.

 

            Mr. Rooker asked what would happen if visibility was no longer a criterion and there were no trees around the tower location.  There are requirements for maintenance of trees and requirements concerning the height of a tower with respect to trees.  What if it is an open area along an entrance corridor?  Can towers be put up as a matter of right with no review?

 

            Mr. Wyant asked about scenic highways.

 

            Mr. Rooker said that not all entrance corridors are scenic highways.  There is Hydraulic Road, Rio Road and Route 29.

 

            Mr. Cilimberg said the avoidance area definition will kick in for Tier III.  Then there are criteria set out for Tier II.  One criterion is that the facility shall not adversely impact resources identified in the County’s Open Space Plan.  Without adequate screening, the request would not fall under Tier II. 

 

            Mr. Rooker said he does not remember the ARB ever recommending denial of any tower request.  They don’t view it as their job to recommend denial.  They view it as their job to take the application and try to dress it up on the existing location.  They don’t like to make a decision that it is not appropriate to the site.  He asked if the entrance corridor is a protected area in the Open Space Plan.  Mr. Davis said it is.

 

            Mr. Rooker said he wants to be sure towers that are not screened will not be allowed all along the entrance corridors. 

 

            Mr. Bowerman agreed.

 

            Mr. Cilimberg said there is also visibility from adjacent parcels and streets to consider.  There are criteria about the limitation of that visibility.  Staff will look at requests as the Board has looked at them in the past.

 

            Ms. Thomas asked if No. 2 on the top of page 10 will do it (“The facility shall be sited to minimize its visibility from adjacent parcels and streets, regardless of their distance from the facility.”).

 

            Mr. Davis said that unless visibility can be minimized, it does not meet the criteria of No. 2.  He believes there is some discretion allowed as to how to meet that standard. 

 

            Mr. Rooker asked if this only speaks to how the tower is sited on that property as opposed to making a decision that the site is unacceptable.  If the site had no trees, can a determination be made that the site does not qualify because no matter how the tower is sited, the criteria cannot be met.

 

            Mr. Davis said if the tower cannot be sited to minimize visibility, then it would be denied as a Tier II.  If there were an open piece of property, and the request was to place the tower in the middle of that property, the request would be denied because it is visible.

 

            Mr. Rooker said if that is the case, then he is comfortable with the language.

           

            Ms. Thomas asked if taking out of the definition of avoidance area the words “any location having unlimited visibility” is safe because Tier II requires that visibility be minimized. 

 

            Mr. Davis said there could be a situation as described by Mr. Rooker, an open field and someone wants to put a tower there.  As the language was originally proposed, that request would require a special use permit which is a legislative decision where this Board could find that the tower was visible, and deny the request.  That would be an easily defended decision.  In this situation, if an applicant could find a way to minimize visibility by planting trees or something else and then argue that they had minimized visibility, it could be contested.  From a practical standpoint, he does not think that would be a problem.  The situation would have to be addressed in a way to actually minimize its visibility.

 

            Ms. Thomas said one thing that is driving her is what is happening in Greene County.  She said the first cell tower operators in Albemarle County devised the telephone type of pole with a tuning fork of some type on top.  Someone in Greene County must have felt that was a good idea, so they started putting them in the middle of parking lots, where they are very ugly.  When she sees that this ordinance would allow a pole to be placed without Tier III review in any location having unlimited visibility, what comes to mind is those unfortunate towers in parking lots.  Those locations have unlimited visibility, the poles are the latest technology for the least visible poles, but they are a real eyesore.

 

            Mr. Davis said the Board may want to instruct staff to take this draft ordinance and boost wording in the criteria.  When this was originally drafted, a special use permit was required for “avoidance areas” with unlimited visibility.  These criteria have not been adjusted to address that situation.  If the Board has a concern about that, staff needs to look at whether this language is adequate to address the modified definition of “avoidance areas.” 

 

            Ms. Thomas said she would be more comfortable doing that, partly because she just got a copy of the revised language this afternoon. 

 

            Mr. Dorrier said there are some people in the audience who would like to speak.  He then opened the public hearing on this item. 

 

            Mr. Pete Caramanis, attorney for Alltell, thanked the County for this effort.  Codifying what had become standard conditions will be a big help.   He said the wireless providers try to design a site that will meet requirements.  That has been somewhat difficult given the conflict between the wireless policy and the ordinance.  He supports the changes recommended to the definition of avoidance areas.  Without those changes, no facilities fit into the definition.  He would like the Board to consider changing the language prohibiting towers from being within 200 feet of an existing tower.  In the list of five tower sites mentioned by Mr. Waller earlier, three of those sites have more than one tower on the site.  They have co-existed well and they are no more visible than the original towers.  The ordinance is written now to require that an additional tower on the same site be 200 feet away, or on another parcel.  Each new tower requires a new access road even if it is just 200 feet away, utility easements, etc.  It takes away from the County’s goal to minimize visibility of these sites, and to minimize land disturbance as these sites are constructed.  He asked that this limitation be taken out of the definition if the Tier II criteria are rewritten. 

 

            Mr. Caramanis said he would like to comment on the practical aspect of this amendment.  It appears that Tier III would become presumptively inappropriate.  In other words, a Tier III application is filed, and staff asked that it be a Tier II.  Considering the way the ordinance is written with that limitation, a Tier III application might actually be better, having lower visibility and lower land disturbance.  The Commission was willing to state that a Tier III would not be presumed to be worse than a Tier II.  He asked that the Board consider that same thing and offer its opinion on the record that that would not be the case. 

 

            Ms. Thomas said there is nothing in the language that says a second tower cannot be constructed close to the first one on a site.  It is just that the applicant has to go through Tier III review.  She asked that Mr. Caramanis quantify how much worse the Tier III review is, and to what lengths an applicant would go to in order to avoid filing a Tier III application. 

 

            Mr. Caramanis said applications are time-driven and Tier III opens the application to public comment.  Once sites are found, the applicant wants to build the tower immediately.  A major factor is the extra months it would take to get approval.  When doing site selection, they look for a site that will most likely be approved.  With the limitation in the language, it probably will not be the best site, even from the County’s perspective.  By making it a Tier III application, the wireless provider would get pushed toward finding a different Tier II site that might be a worse site.  One thing that is good about Tier II is that if the criteria are met, the application is approved. 

 

            Ms. Valerie Long said she has represented several wireless carriers over the past few years.  She agrees with the comments of Mr. Caramanis in every respect.  She commented to the Commission that the definition of avoidance area was overly broad.  She appreciates the research Mr. Caramanis did on past approvals to see which would have been Tier II and Tier III.  She did the same thing for some of the sites of her clients and found that some of the very good sites would have been Tier III under this new ordinance.  She noted a location in the Samuel Miller District near Arrowhead Farm on the east side of the road heading north where there is a second pole on the facility in a heavily wooded Entrance Corridor district.  She knows where it is located, but cannot locate it just driving along the road.  It could probably handle more towers, just like the Herring site, without having an adverse impact.  She applauds the proposed revisions to the definition of avoidance area.  She still thinks it is a little tight.  The definition of skylighting is a little broad and could technically be applied to almost any site.  She said there are a variety of vantage points where a tower might not be viewed, but 100 yards down the road it could be skylighted and technically be a Tier III facility.

 

            Ms. Long said she thinks the seven feet versus ten feet in terms of the height of the tower above the top of the highest tree is very important.  In many cases, the difference in visibility between seven and ten feet is minimal, but the difference in function of that signal from the tower is important to the industry.  She is pleased that criteria have been included in the ordinance allowing for modification from seven to ten feet, but the standard is still stringent.  The applicant has to demonstrate that increasing the height from seven to ten feet would not have an adverse visual impact and that technical reasons require the tower to be taller.  In her opinion, it should not require both. 

 

            Ms. Long’s time for speaking had expired, but asked that she be allowed to make a further comment.  Mr. Dorrier acquiesced.  Ms. Long said the way the current conditions are drafted is a good compromise.  They state that the top of the tallest tree shall never be more than a certain number of feet above the top of the reference tree.  That works well for the County because it provides some certainty knowing that the pole will never be but that number of feet above the top of the reference tree.  It provides an incentive for the wireless provider to do everything in his power to protect the health of the reference tree.  If for some reason the reference tree were to die, the condition would require that the top of the pole be no taller than ten feet above the remaining tallest trees.  The benefit to that condition in the past has been that if the tree grew, upon a showing by a certified surveyor, staff could allow the height of the tower to be raised by an equivalent distance.  The new ordinance addresses that issue, but it is no longer an automatic increase.  It also requires a demonstration that there will not be an adverse visual impact from that increase in height.  From the industry’s perspective, that is a step backward.  If the reference tree grows by five feet, the tower should be able to be raised by an additional five feet.  She understands that very few carriers have asked to increase the height of these poles because of the cost of replacement, particularly for wood poles.  However, at some point in the future, it will take a significant effort to go back each time to demonstrate visibility.

 

            Ms. Thomas asked Ms. Long to what lengths she would advise her clients to go to avoid the Tier III process.  Ms. Long said her answer is similar to that of Mr. Caramanis.  It is a site specific issue.  She thinks the industry would want to get a site in operation.  When there is a need for a site, it is an immediate need.  In that respect the ordinance is well-crafted because it means the very best sites will be Tier II sites and will be reviewed and approved faster.  She would counsel her clients to find the very best site available, and one that is a Tier II site which gets administrative approval. The worst thing for an applicant is to spend a lot of time and money investing in a site, and be denied by either the Commission or the Board.  The application process is very expensive.  Because the definition of Tier II is broader than she would recommend, she is concerned that at some point in the future, she would not be able to advise whether it would be a Tier II or a Tier III site.  She is fearful that there would be no answer in that regard until after going through the Tier II application process. 

 

            Mr. Rooker asked who makes that determination.  Would not the Zoning Administrator’s office decide whether it is a Tier II or Tier III site? 

 

            Mr. Davis said they could initially, but it may be a difficult determination and the Commission would simply deny the site as a Tier II because they did not think it qualified.  The ordinance was modified to make the Tier II a Tier III if the Commission denied the application. 

 

            Ms. Long said that is helpful, but the problem is that the applicant is probably three months into the process at that point.  If denied by the Commission, they would then file by the next filing date for special use permits.  It is then a minimum of four months from the start of that process until the application is heard by the Board.

 

            Mr. Rooker asked if the Commission, at the same meeting, could make a motion to treat the application as a Tier III application.  Mr. Davis said a Tier III application requires an advertisement.

 

            Ms. Long said that is her concern.  She thinks there should be some way to make that determination earlier, but that would take away the discretion of the Commission.  She is not sure of the solution, but when the issue is time, there is not a lot of difference from the applicant’s point of view in bringing something as a Tier II request to the Commission, and filing for a Tier III request and taking it all the way to the Board. 

           

            Mr. Davis said the Zoning Administrator will make a determination when the application is filed as to whether it is Tier II or not.  There is an appeal provision in the ordinance in the event the Commission does not feel it meets the criteria for Tier II.  Otherwise, the application would simply be denied as a Tier II and the applicant would have no avenue to get that application approved. 

 

            Mr. Cilimberg said theoretically the applicant could appeal that decision to the Board.  It would not be a special use before the Board, but an appeal of a ministerial decision or they could go back and go through the special use permit process. 

 

            Mr. Bowerman said that would take seven months.

 

            Mr. Davis if the application were determined to be a Tier II and the Commission denied the request, and the applicant thinks they can meet the criteria for Tier II, they could appeal that decision to the Board.  The Board could overrule the Commission.  Then, if the Board denied the appeal, the applicant would have to go through the special use permit process.  If the applicant is satisfied that they did meet the Tier II criteria, they could apply for a special use permit because then there would be conditions to offset the impact.

 

            Mr. Bowerman asked if a request could be advertised as a Tier III application even if they apply for a Tier II so it could be advertised in order to cut the process time.

 

            Ms. Thomas said the public would then think there was going to be a public hearing. 

 

            Mr. Rooker said if people get a determination from the Zoning Administrator, he thinks that would take care of the situation 99 percent of the time.  It would be a rare occasion when the Commission would disagree with the Zoning Administrator’s determination.  That would allow a threshold interpretation.

 

            Ms. Long said she did not want to discourage the concept of a Tier II because it is very important to the industry. 

 

            Ms. Thomas said this is the second time the Board has been faced with the recognition that a special use permit is so feared that people will go to great lengths to avoid it.  The first time was when the Mountain Protection Ordinance was proposed.  The Board thought having a special use permit was going to be the escape clause and offered it with great generosity to property owners.  It turned out that it was such a frightening concept that instead of regarding it as a gift to the citizens, the citizens thought it was a penalty. Instead of being the way to get a pole on a difficult site, it looks like Tier III is being regarded as a thing to be avoided at all costs.  It may be self-defeating. 

 

            Mr. Dorrier said the process involves much time and much money and that is why special permits are feared.

 

            Mr. Rooker said it is the uncertainly of approval.  On the other hand, any time a discretionary decision of the Board is involved, it makes the outcome uncertain.  The question is how far the Board wants to go in eliminating discretion.  Looking at the avoidance areas, he might be in favor of eliminating 200 feet from a a scenic river and 200 feet from the national park because he thinks some of the best sites are sites that would not qualify there.  They automatically become avoidance sites.  He would like to see some addition to the criteria for Tier II facilities saying “the site shall provide adequate opportunities to screen the facility.”  Then follow that with “the facility shall be sited to minimize visibility from adjacent parcels.”  That would make it clear that this language refers to sites that provide some potential for screening the facility.  He asked how the other Board members feel about the two areas in the avoidance area that he mentioned. 

 

            Mr. Bowerman asked about one tower being located within 200 feet of another tower. 

 

            Mr. Rooker said normally he would not have a problem with two towers that meet all the criteria.  When there are more than two towers, it becomes a tower farm. 

 

            Mr. Bowerman said he thinks that is reasonable. 

 

            Mr. Dorrier said one more citizen had indicated that he would like to speak.

 

            Mr. Robert Hogue said he hopes the County will consider how close it allows a tower to an adjacent or adjoining property owner.  There was one proposed for Nextel-Gallihugh and he was asked for an easement on his property.  He refused to grant an easement, and they asked the Planning Commission to overturn the easement, but they did not.  If the tower were allowed, because of liability, he would have clear cut his trees back.  No trees would have fallen against their tower or their building.  He hopes the Board will consider that and also that the adjoining landowner should not have to provide screening with trees.  The tower that is already on that site is visible in the wintertime.  He can see it everyday from his kitchen table.  The trees in his yard are dying.  Trees only have a certain life span, and they are close to his neighbor’s property.   

 

            Mr. Rooker said if criteria were added requiring that the site provide adequate opportunities to screen the facility that means it cannot be dependent upon the neighboring property to provide that screening.

 

            Ms. Paula Figgett with Site Solutions, said she had one site which was denied at the Commission level, so she decided not to pursue it.  That was a site adjacent to the David Weber property.  There were three treetop facilities there.  When she did the site selection, instead of going to the three treetop facilities, she went to the adjoining property owners.  There were no problems with the property owners, but they were subject to a 200-foot conservation easement against the other treetop facilities and Mr. Weber would not sign a conservation easement for the adjoining owner although he had three towers on his property.  She will note that she likes to cluster facilities.  If they are not put in a certain area, then another tower must be put in a closer location.  There would have to be more facilities rather than just one facility.  That is her main point.  She also thanked County staff for all the time they have put into this ordinance.

 

            Ms. Thomas asked how Ms. Figgett wanted the ordinance changed. 

 

            Ms. Figgett said she would like to have the ability to place three or four facilities at one location instead of having a 200-foot distance between the facilities.  About $30,000 is put into a site before even getting to the zoning process.  They have started to include County staff members in the site selection process.  In this case, there was a staff member involved.  Because of changes in personnel over the years, sites have been subject to different interpretations.  That is difficult for the applicant.  This ordinance outlines a little better what is required.  She said she will avoid special use permits like the plague.  She will also say that there has been little or no public comment on any of their sites.  There was only one in a subdivision for collocation on a Dominion Power structure where there was opposition. 

 

            Mr. Rooker asked if all of their applications have been approved except for that one.

 

            Ms. Figgett said “yes.”  With the collocation on the structure with Dominion Power, they made a few concessions with the homeowners’ association. But, it takes one to one and one-half years in order to get something approved, and by then the carrier is so frustrated that they pull all their funding and decide not to build the site because of its costs. 

 

            Ms. Thomas said that collocation on the Dominion Power tower is now a Tier I site.  Ms. Figgett said that is correct.  In this case, it was in a private subdivision, so the homeowners were involved in the process early on.

 

            Mr. Rooker asked if that request was in Montview Subdivision.  Ms. Figgett said it was.

 

            Mr. Rooker said that is the very situation where public input is needed. Ultimately, the public input resulted in agreements to change the application to be more palatable to the homeowners.  He said the Board has to look at both sides of the issue. 

 

            Ms. Figgett said that was a private subdivision, so the homeowners had input regardless of whether the petition came to the Board or not.  They could make the decision collectively whether or not it got to the zoning stage. 

 

            Mr. Rooker said it was on private property.  He recalls that the homeowners’ association did not control the tower site.  That was on a Dominion Power easement.

 

            Ms. Figgett said it was within the roads controlled by the association. They had to have access within those roads.  They did a lot to make that happen by making concessions.  They even vaulted the cabinets underground so there was no visibility. 

 

            Mr. Rooker said the Board has had other applications where towers were next to subdivisions and the applicant did not need to use that subdivision’s roads.  It is nice to have a process where the neighborhoods can have input, and perhaps some impact on the application. 

 

            Ms. Figgett said she works in five different states, and Albemarle County has the most rigorous set of laws.  They have tried to abide by them and be sensitive to the community, 

 

            Ms. Debbie Balzer said she is the Site Acquisition Manager for Intelos. She said the site Ms. Figgett referred to is an Intelos and is still a problem today.  If the County allowed telecommunications facilities to be within 200 feet of each other, that would allow two tower companies to work together on things like access roads.  That would save costs, because it costs quite a bit of money just to get to the zoning application process.  If this Tier II process is approved and they only have to get Commission approval, she wonders if the deadline schedule will remain the same and what the application fee will be.  She said time is of the essence.  After her budget is approved for a site, there is a limited amount of time to get the tower on the site.  It usually takes one-half of a year to find a site and then they have to go through the zoning process. 

 

            Mr. Boyd asked if having two towers within 200 feet of each other is enough, or do they need more towers.  Ms. Balzer said she thinks two are sufficient.  They are presently working on a site and she knows that there are three carriers looking at same property.  It is a huge farm.  The property owner is talking to all three carriers, and he wants them to all go within the same area with one access road. 

 

            Ms. Long suggested that the ordinance language be tweaked to allow staff the discretion to decide that a site is a good site and able to handle multiple facilities.  In the definition of avoidance area, one criterion is that the facility be located on property under a conservation easement.  For a long time, she felt that was an appropriate category of properties to be included in an avoidance area.  She works with landowners who put their land in an easement, and they have said that they want to reserve the right to put a treetop facility on their property even after it is under easement.  The tower approved earlier tonight on the Verulam Farm site is on property under easement.  Protection for the property is built in because the landowner would have to approve any application for a special permit on his property and the easement holder would also have to approve it.  If it is okay with the easement holder and the landowner, presumably it should be sufficient to protect the open space and conservation purposes of the easement.  There are a number of properties in the County, large wooded properties, which are often near major roads and scenic highways and which are under easement now and many more will be in the future.  This language takes away the property options for sites that could be Tier II sites.  She proposes that the language be deleted from the definition. 

 

            Ms. Thomas said she personally spoke to a gathering of the Virginia Outdoors Foundation to try and convince them that treetop towers would be appropriate on property that had conservation easements.  She thinks they did make that determination.  She thinks they will be greater sticklers than the Board.  She said a few years ago, there was a large piece of property in a conservation area and the Board said that was an avoidance area.  The tower company moved immediately off of that property and erected a tower.  It bothers her because the person who has the conservation easement, having generously preserved that land for future generations and more importantly for all of her neighbors, has to look at this tower.  She thinks parcels adjacent to property on which there is a conservation easement or open space easement should be regarded as avoidance areas.  Otherwise, the Board is condemning people meeting one of the highest goals in the Comprehensive Plan (the Rural Area conservation and growth management), when they put their land in a conservation easement.

 

            Mr. Rooker said he is willing to take out that language.  Just because a site is within a conservation easement or open space property, should not automatically kick it into an avoidance area.  Some of the best sites have been sites in open space or conservation areas.  If all the other visibility requirements are met for Tier II, if the conservation easement property owner and the conservation easement holder both agree, why should the County step in and penalize the person who put their property into the conservation easement by denying them the potential of earning revenue off of that property when it meets all the visibility requirements? 

 

            Mr. Dorrier said that is a good point. 

 

            Ms. Thomas asked if this would affect the Public Recreational Facilities Authority in any way.

 

            Mr. Davis said the easement would control whether or not the facility could be located on that property.  If a property owner said they did not want a tower on their property that could be added into the easement.  He said the current model easement does allow towers. 

 

            Mr. Dorrier asked if anyone else from the public wished to speak.  With no one coming forward to do so, the public hearing was closed and the matter placed before the Board.

 

            Mr. Davis said he would like to answer a question from earlier in the meeting about the timing of the process.  The ordinance provides that an application will be treated like a site plan which basically requires a 60-day approval cycle.  That is considerably faster than the special permit process.  At this time, there is no fee listed in the ordinance for the review process.  That is something which should be corrected. 

 

            Mr. Waller said that is something staff will have to address.

 

            Ms. Thomas suggested that the Board summarize what it is asking staff to do.  There is the fee structure; changing the avoidance area to remove parcels subject to a conservation or open space easement; to remove the location within 200 feet of a national park or national forest.  Mr. Tucker said it was suggested that scenic river also be removed.

 

            Ms. Thomas said she questions that.  National Parks and national forest in Albemarle County are by definition, well-forested areas.

 

            Mr. Bowerman said there are not going to be any towers around rivers anyway because rivers are low in elevation. 

 

            Ms. Thomas said there is also the change on Page 10, No. 2, with some kind of wording that the site has to afford the screening and not just that the facility is sited to minimize visibility. 

 

            Mr. Rooker suggested just adding another numbered paragraph to the effect that “The site shall provide adequate opportunity to screen the facility.”

 

            Ms. Thomas said she likes Mr. Davis’ suggestion that since the Board has changed the definition of “avoidance area” that staff go through the draft ordinance carefully to make sure there is not something else that needs to be changed.

 

            Mr. Davis said there were a couple of other issues raised.  One has to do with the criteria to raise the tower from seven to ten feet above the tallest tree.  There are two criteria now, visibility and the technical necessity for the height change.  He asked if the Board wants to maintain “technical necessity” if the visibility criteria is satisfied. 

 

            Mr. Rooker said he thinks almost every applicant could make that showing.  The County does not have adequate staff with RF capabilities to make a judgment as to whether or not the statement by an engineer that the facility will be technically better if they move it up, is accurate or not.  Also, because of the expense involved, the applicant is not going to raise the tower unless it is going to improve the technical aspects of the tower.  He is in favor of dropping that stipulation. 

 

            Mr. Davis said a similar issue was raised.  If the trees grow and the applicant wants to raise the tower, is that something the Board wants to happen automatically with staff approval?  The draft ordinance requires a demonstration that there is no adverse impact by raising the tower.  He said that under the special use permit conditions, that is not required. 

 

            Mr. Rooker said he thinks the requirement should be dropped. 

 

            Ms. Thomas said there is a tower which she sees out of her front door.  It is protected by one tree and it is pretty visible.  Even if that tree grows five feet, it will not have grown to endear itself.  If anything, it would just become more visible.  She is not sure she wants that change to be automatic.  What is the alternative? 

 

            Mr. Davis said that under the proposed ordinance, they would have to demonstrate that there is no adverse visual impact.

 

            Ms. Thomas asked if that is demonstrated just to staff.  Mr. Cilimberg said the way the ordinance is written now, the agent may authorize the height to be increased.

 

            Ms. Thomas said she thinks it would be fine to have the agent do it, but she thinks it should be approved and not happen automatically.

 

            Mr. Davis said that under the special use permit conditions the tower would have to be approved.  The applicant has to demonstrate that the tree has grown.  If that can be satisfactorily demonstrated, the agent must approve the request.  This ordinance takes it a step further by saying that not only must it be demonstrated that the tree has grown, but also that there is no adverse visible impact.  That is a greater standard than what has been required in the special use permit process.

 

            Ms. Thomas said that should be proved to the agent, someone needs to look at the visual impact of such a request instead of it being automatic. 

 

            Mr. Rooker said he thinks that is unfair because the County does not impose that requirement when someone applies for a new tower.  If the property meets the criteria for a site, there is nothing which says the tower cannot be seven feet above the highest tree because of some judgment about visibility of that site.  Also, if the reference tree grows and the applicant applies for a higher tower on that site, there is no criteria to be judged about its being raised seven feet above the tallest tree.  In an existing tower situation which has passed all the criteria and the tree grows, the applicant has to make an additional showing about visibility which is not required when applying for a new tower. 

 

            Ms. Thomas said she thought they did have to make such a showing.  Mr. Rooker said they do not.  Ms. Thomas if they don’t, she is even more upset.  Mr. Rooker said this only has to do with the issue of “above” the tallest tree.  The site qualified initially because it satisfied all the criteria.  Ms. Thomas said that had a lot to do with visibility.  Mr. Rooker said it had nothing to do with the tallest tree except that they could only be a certain number of feet above that tallest tree.  If that tree were 110 feet tall, they could go up to 117 feet under the seven-foot stipulation.  There was no aesthetic judgment about the seven feet in relationship to the tallest tree.  That is automatic under this ordinance.  All of a sudden it is not automatic when the tree grows.  They spent a lot of money on the site and the reference tree grew and they can no longer get the signal out in the same way they got it out before.  To him, that should not be a judgment.  Once the tower has been approved, they should not be treated differently with respect to its height than someone who applies for a new tower.  If someone came in and applied for a second tower on the same site, the criteria applied to that second tower would be less than the criteria the Board is talking about applying to the existing tower. 

 

            Ms. Thomas said if the site is a good site for reasons other than just the tallest tree, and over the years the tallest tree grows taller, but things change on the site over the years, she thinks it is appropriate to use some judgment as to whether raising that tower another five or ten feet is still creating a situation that is not visually intrusive.  Mr. Perkins always assured the Board that when trees got to that height, they were not going to grow taller. She does not think this will happen often, but when it does, it will be some years after the initial approval, and other things will have happened on that site.

 

            Mr. Rooker said he would agree with Ms. Thomas if the agent could take into consideration something other than just the tallest tree on the site in making that decision.  He wonders if the Board is putting a burden on the agent to make that determination.  If the only thing he can look at is that the one tree is changing height, then in reality visibility is almost always going to be impacted by raising that tower height.  Now, a tower that was once seven feet above the tallest tree is only three feet above the tallest tree.  Is it fair to put the applicant in a situation where towers that were approved with respect to their relationship to the tallest tree all of a sudden can’t remain on the site because the tallest tree has gotten taller?  Someone could put a tower on a site next door which meets the criteria and put it up seven feet above the tallest tree, and once they had established all the criteria, that is a given. 

 

            Mr. Bowerman agreed with Mr. Rooker.

 

            Ms. Thomas said she also understands what Mr. Rooker is saying.

 

            Mr. Wyant asked what happens if the tallest tree on the site dies.  Does that mean the tower would have to be lowered? 

           

            Mr. Davis said they would either have to do that or come back before the Board and satisfy the Board that the tower should remain on the property.

 

            Mr. Wyant said these trees will grow slow at that height.

 

            Mr. Dorrier asked if the 200 feet between towers was eliminated.

 

            Mr. Davis that is the clustering criteria, so he understands that the Board would allow two towers to be located in the 200 feet, but the third tower would have to be more than 200 feet away or be a Tier III.

 

            Mr. Wyant said there was a concern expressed about screening of those towers, so if any kind of screening is done, is the lesser of the tree heights used as the mean sea level elevation? 

 

            Mr. Rooker said Tier III allows additional criteria to be applied, or there is the ability to deny the request.  Someone can always think of anecdotal situations where approval would have been fine.  That could be said every time there is a situation where there are three towers, and the Board approves the request, but in his mind, once there are more than two towers on a site, it is getting to be a tower farm.  On some sites that might work fine. 

            Mr. Bowerman asked what would happen if the Commission made a decision that three would be okay, and the agent also made a determination that three can locate on the same site and meet the criteria. 

 

            Mr. Rooker said he is comfortable with two, but thinks that when it gets to three he would like an opportunity to look at the situation.

 

            Mr. Bowerman asked why the Commission could not do that. 

 

            Mr. Rooker said they can, but if it is a Tier II request, they could not deny it.

 

            Mr. Bowerman said if the tower can’t be hidden, they could deny the request. 

 

            Mr. Boyd said it still has to meet all the other criteria.  It does not automatically have to be put to a Tier III.

 

            Mr. Rooker said the same thing could be said for every Tier III application. 

 

            Mr. Bowerman said that is true, but someone has to make that determination, so why not let the Commission do it. 

 

            Mr. Rooker said the Commission does not have the right to deny a request. 

 

            Mr. Bowerman said it would not meet the criteria for a Tier II if that was the case. 

 

            Mr. Rooker said each tower is judged independently.  The tower clustering effect cannot be judged in this proposed ordinance unless there is something that causes it to be kicked in to Tier III after assembling a certain number of towers within a certain distance.  Every tower is considered as though there is nothing else around it.  If the Board wants to be able to consider the visual aspect of having a number of towers located near each other, at some point it has to be kicked into an avoidance area which means that it gets a special use permit.

 

            Mr. Bowerman said it is hard for him to conceive that two towers met the criteria, and then the third tower on the same site does not make it a Tier III site.  They are looked at individually.

 

            Mr. Rooker said if the 200-feet distance from each other is deleted, the fact that there are other towers on the site is irrelevant.

 

            Mr. Bowerman said each one is independently verified that it is not a problem. 

 

            Mr. Rooker said the visibility aspects of the other towers would not be taken into consideration.

 

            Mr. Bowerman said the towers would not be there if they had not already received approval.

 

            Mr. Boyd asked why the cumulative effect would not be taken into consideration.

 

            Mr. Rooker said there is nothing in this ordinance that would allow that to be done.

 

            Mr. Davis said that only the visual effect of a single tower would be looked at.

 

            Mr. Boyd asked if that is relative to what is around it.

 

            Mr. Bowerman said Mr. Rooker is thinking that three towers are automatically bad.  That they automatically lead to a situation that is not wanted. 

 

            Mr. Rooker said he believes that multiple towers within a short space of each other present a visibility situation that is different from one tower.

 

            Mr. Bowerman said he does not think it is significant.

 

            Ms. Thomas said maybe something can be worded so it is not the 200 feet but the cumulative effect of more than one tower taken into account by the Zoning Administrator when deciding if it is a Tier II or Tier III situation.  She said the Herring site is a marvelous site with four towers.  On the Weber site that was mentioned, it was actually the cluttering on the ground that caused the site to become cluttered with three towers.  It was a site where the top of the towers could not be seen, but one drove by the bottom of the towers. 

 

            Mr. Davis said Ms. Thomas has mentioned something staff can work with.  That is, say four towers within 200 feet, and that would make it a Tier II tower.  Then add criteria under the Tier II considerations for the Commission to determine whether or not the cumulative impact of towers within 200 feet adversely affects the visibility of the site, rather than the specific tower. That would be criteria that could be used to deny it as a Tier II.

 

            Mr. Rooker said he would be comfortable with that suggestion. 

 

            Mr. Davis said if the Commission denied the request, it could be appealed to the Board or become a special use permit.  He said staff will have to work on the language. 

 

            Somebody in the audience asked a question which could not be heard.  Mr. Davis said the ordinance already addresses that issue.  Under the criteria which are incorporated by reference, the tower either has to be the height of the tower away from the property line or an easement has to be acquired from the adjacent property owner to locate it closer.

 

            Ms. Thomas said if the adjacent owner won’t give an easement, then they don’t have to worry about it.  Mr. Davis said that is correct.  The tower has to be located a distance off at least its height away from the property line. 

 

            Mr. Bowerman said they are probably willing to pay for that easement. 

 

            Mr. Wyant said that has not been deleted from the ordinance.  Mr. Davis said that is correct.

 

            Mr. Dorrier asked if there should be a motion on this matter.

 

            Mr. Davis said that because some of the changes are less restrictive, but some might be more restrictive, it will probably need to be readvertised so the Board can hold another public hearing on the changes in order to meet legal criteria.  He suggested that it be advertised for September or later. 

 

            Mr. Tucker asked if the Board would consider having the public hearing at the day meeting in September, rather than on a night meeting. 

 

            Mr. Davis asked if the Board wanted staff to determine a reasonable fee to cover the County’s standard cost of review. 

 

            Mr. Dorrier asked the amount of the fee at this time.  Ms. Long replied from the audience that it is $980 at this time.

 

            Mr. Rooker offered motion to defer any action on this ordinance until September 1.  The motion was seconded by Mr. Boyd.  Roll was called, and the motion carried by the following recorded vote: 

 

AYES:  Mr. Bowerman, Mr. Boyd, Mr. Dorrier, Mr. Rooker and Ms. Thomas and Mr. Wyant.

NAYS:  None.

_______________

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