Public Hearing Items:

ZTA-2004-007 Tier II Personal Wireless Service Facilities Fees. Amend Section 35.0, Fees, of Chapter 18, Zoning, of the Albemarle County Code to impose fees to cover the cost of services rendered by the County in reviewing and approving the information, reports, documents and plans required to be submitted for Tier II personal wireless service facilities under proposed amended section 5.1.40 (“Tier II review”) of Chapter 18, and other expenses incident to the administration of the Zoning Ordinance related thereto.  The fees for each Tier II review would be $790.00. The complete ordinance, and information concerning the documentation and justification for the proposed fees, are available for examination by the public in the Office of the Clerk of the Board of Supervisors, Albemarle County Office Building, 401 McIntire Road, Charlottesville, Virginia, and may be inspected between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday.  The proposed fees are authorized by Virginia Code § 15.2-2286(A) (6).   (Stephen Waller)

Mr. Fritz stated that as the Commission knows, staff has been undertaking substantial revisions to the Personal Wireless Service Facilities provisions of the ordinance.  The concept of the three tier wireless review policy is under review right now before the Board of Supervisors and will go back to them in October.  There are three new tiers.  Tiers I and II have fees already associated with them.  However, Tier III does not.  This zoning text amendment is to add to the ordinance a Tier II fee. Staff is recommending of fee of $790.  The recommendation is based upon the fact that the review will be substantially similar to the review that would occur for a final site plan that comes before Planning Commission.  Staff has to go out in the field, send notices and prepare staff reports.  There is a great deal of work associated with this review. The suggested language to be added to the ordinance is included in the Commission’s packet.  If the Commission has any questions, he would be happy to answer them. He pointed out that Stephen Waller, Senior Planner, was also present and could answer any questions since he was the assigned planner on this project.

Ms. Higgins asked what the basis was for the $790 fee and how did staff arrive at that amount.

Mr. Fritz stated that when the fee of $790 was adopted in the ordinance for a final site plan that staff had done an analysis. Staff’s analysis compared the number of hours spent in the review and how their fees related to other jurisdictions before the fee was established.  He pointed out that he was not sure if staff actually recommended the amount of $790 or if they recommended a higher fee.  He noted that was the extent of his knowledge regarding that procedure.

Mr. Thomas asked if there were any other questions for staff.  There being none, he opened the public hearing and noted that the County was the applicant.  Therefore, he asked if there was any one else present who wanted to speak regarding this application.  There being no one, he closed the public hearing to bring the matter back before the Commission for discussion and a possible action.

Mr. Morris moved to approve ZTA-2004-007, Tier II Personal Wireless Service Facilities Fees, as submitted.

Mr. Edgerton seconded the motion.

Mr. Kamptner stated that the Commission may recall that when the main zoning text amendment for the Wireless Policy came before them that there was a process that was added to the ordinance.  The new process was for when an applicant for Tier II is determined to no longer qualify for Tier II, that it then became a Tier III special use permit. For this fee there may be an applicant who paid the Tier II fee, and then once it was determined that they don’t qualify for a Tier II they would need to pay the Tier III special use permit fee.

Ms. Higgins asked if that meant that the applicant just had to pay the difference.

Mr. Kamptner stated that at this point the way the ordinance is set up is that the applicant would have to pay two separate fees. As time goes on, staff will be able to see whether the fee matches the additional work that goes with processing the request as a special use permit.

Ms. Higgins asked where the special use permit category lists wireless facilities.

Mr. Kamptner stated that it would probably go under Section 35.a.3.

Ms. Higgins asked if it would go under commercial use.

Mr. Fritz stated that it was not specific because it includes all commercial uses falling in that category.

Ms. Higgins suggested that some wording be added to that section which specifically says that.

Mr. Kamptner stated that this language has served the County very well up until now.

Ms. Higgins suggested that some wording be added stating that the fee for Tier II Wireless Facilities is $790, and then if it was administratively determined that a Tier III review was required then an additional fee is required. She felt that they were sending something forward with no basis for why the number is that way other than in a vague comparison.  It was possible that someone applies under Tier II and then was told later that the fee does not apply. She stated that it seemed like a vague area for even staff to understand.

Mr. Fritz asked if she meant vague in terms of why staff was recommending $790.

Ms. Higgins stated no because she felt that it was vague if someone comes in, makes an application and pays the $790 fee, and then through the process suddenly finds out that the fee is inadequate when they go to a Tier III review.  She stated that if there was no reference back to a Tier III fee and it was just covered under commercial use that it could cause some confusion. She suggested the wording should say that it would be $790 unless it was deemed to be Tier III, which would mean that a commercial use fee is due. She felt that it needed to be clarified that it would be the difference between the two fees or an additional fee of $790.

Mr. Kamptner stated that unless the administrative practice is different as written, if the applicant filed for a Tier II and then later it had to be processed as a Tier III, then there would be a separate fee.

Mr. Fritz stated that was done administratively and that staff has done that before. If an application is made and mid-way through the review staff determined that it should have originally been filed as a different type of application, then they charge the difference and not a new fee.  That has been a normal administrative practice.  But, if the applicant goes all the way through the process and then tries to force the issue that they think it is a Tier III, then they pay the difference and process it as a Tier III.  But, if the applicant comes forward with a Tier II and have it turned down, then they don’t pay the difference between Tier II and Tier III. Since they received their Tier II review, they would have to the pay the new fee.

Ms. Higgins stated that since the Tier II fee is the only one being added here on the list, would it be appropriate to say Tier III falls under commercial use under Section 35.a.3.

Mr. Fritz stated that it automatically falls under that section because it is a special use permit.  That section is picking up all special use permits for all types of commercial uses.  Therefore, they don’t need to single out Tier III Wireless Facilities.

Ms. Higgins stated that they were assuming that someone knows that a Tier III is a commercial use.

Ms. Joseph pointed out that all commercial uses that come in fall under that category and that is the fee that they pay.

Mr. Fritz stated that a drive-through window or anything that falls under a commercial use falls under that category.

Ms. Joseph asked if Tier I falls under the building permit category, and Mr. Fritz stated that was correct.

Ms. Higgins asked if it specifically says that some place in the ordinance.

Ms. Joseph stated that Tier I requires a building permit. Therefore, the applicant has to pay the building permit application fee.

Mr. Waller stated that was covered in the Wireless Ordinance that the Commission had already reviewed and passed on to the Board of Supervisors.

Mr. Fritz pointed out that it was the only one that does not fall under something that already exists, which was the only reason why it was being pulled out separately.

Mr. Kamptner stated that the motion was to approve the ordinance as written.  He noted that Ms. Higgins’s concern about the duplicate fees has been addressed by the longstanding consistent administrative interpretation of the fee regulation.  Therefore, the motion is fine the way it is.

The motion carried by a vote of (6:0).  (Craddock - absent) 

Mr. Thomas stated that the motion carried for ZTA-2004-007, which would be heard by the Board on October 13, 2004.


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