SP-2007-00065 Herring Property - Verizon Wireless Tier III PSWF (Sign # 30 & 72)

PROPOSED: Installation of a personal wireless facility with a 73-foot tall treetop monopole tower

ZONING CATEGORY/GENERAL USAGE: RA - Rural Areas; EC Entrance Corridor overlay

SECTION: 10.2.2(48) Special Use Permit, which allows for Tier III personal wireless facilities


LOCATION: Tax Map Parcel 05300-00-00-00600, contains 83.417 acres, off of Green Hill Lane approximately 1/2-mile northwest of the Route 64 West overpass of New Town Road [Route 690]

MAGISTERIAL DISTRICT: Whitehall (Megan Yaniglos)


Ms. Yaniglos presented a power-point presentation and summarized the staff report.  (See Staff Report)


·         This is a proposal for a special use permit Tier III personal wireless service facility with a proposed 73-foot tall steel monopole and three flushed mounted antennas.  There are four existing personal wireless service facilities on the property within 200’ of the proposed facility, and therefore requires the approval of a Tier III special use permit.  The current submittal site for this facility is located approximately 600’ north of I-64 near the VDOT memorial overlook.  The supporting ground equipment will be contained within a pre-fabricated equipment shelter at the base of the tower.  The rock retaining wall with a maximum height of 6’ is proposed for the stabilization of the slopes.  The monopole will be painted brown to further minimize the visibility from the Entrance Corridor and surrounding parcels.

·         A balloon test was conducted and it was determined that the proposed pole would be visible for relatively a short period of time when traveling on I-64.  It would also be visible from the VDOT memorial overlook.  As shown in the photographs.  Surrounding trees provide a backdrop for the balloon.  It was determined that there was a material difference between 10’ and 7’ above the referenced tree.  The applicant has submitted a revision to the original application and is now requesting the top height of the monopole at 7’ above referenced tree. 

·         The Architectural Review Board has approved the location with conditions.  Staff found that the degree of visibility is not expected to have a negative impact and recommends approval of the facility.  If the Commission approves the personal wireless service facility the proposal will also require the approval of a critical slopes waiver. 

·         More research has been done concerning the critical slopes associated with the existing facility since the staff report was written.  Staff prepared a packet that was distributed at the beginning of the meeting.  There were four other special use permits on this property for personal wireless service facilities none of which staff required critical slopes waivers for. 

o        The first was a special use permit in 1999 and the plan that was submitted for that permit did not show topography.  There was a condition in the staff report that stated that a site plan would be required if activities on the slopes of 25 percent or greater was proposed.  This condition did not get approved at the Board of Supervisors meetings and no site plan was submitted as shown in the minute meeting on page 10 of the packet. 

o        There were two special use permits in 2000 on the property.  Both submitted plans for the permits showed critical slopes being disturbed.  However, no critical slopes waivers were required or submitted.  A condition in both of those staff reports states that the site plan application shall be required if activity on slopes of 25 percent or greater is proposed. Again, this condition was not approved by the Board of Supervisors and no site plans were submitted.

o        In 2003 another special use permit was approved.  However, this plan did not show the disturbance of critical slopes. 

·         The current proposed personal wireless service facility in order for the placement of the tower to allow a backdrop of trees disturbance of critical slopes is necessary.  The amount of disturbance is minimal since the access exists and the lease area is only 2,400 square feet.  However, the applicant has not proposed an alternative that would satisfy the purposes of Section 4.2 and denial of the waiver would not prohibit or restrict the use of the property, staff has found both favorable and unfavorable factors.  The favorable factors are not sufficient for staff to make an overall positive finding for the approval of the critical slopes waiver.


Mr. Morris asked if there were any questions for staff.


Ms. Porterfield asked if of the four current towers three of them are built on critical slopes and one tower is not built on critical slopes.


Ms. Yaniglos replied yes that it appears from what was submitted for the special use permits.


Ms. Porterfield asked do you have the diagram that shows which ones talking about.  She noted that the 1999 special use permit did not have a plan that showed topography associated with it.  So there was not a determination made on it.  Three out of the four towers were built on critical slopes and one tower was not.  So there is an area that did not have to affect critical slopes.


Ms. Yaniglos said that the last tower built in 2003 was built without disturbing critical slopes.


Ms. Porterfield asked if there is topography that might allow it, and Ms. Yaniglos replied that possibly yes.


Mr. Edgerton asked how the Commission can approve this site without allowing disturbance of the critical slopes. 


Mr. Fritz said that it could be constructed without the approval of the modification to allow disturbance on critical slopes, which staff is recommending against.  Staff broke it into two analyses.  One is the site itself using Section 5.1.40 in the Wireless Policy on whether or not the site appeared to be appropriate in terms of its impacts.  Staff is able to recommend approval from that standpoint due to the way this particular facility is sited and has access to it.   But, they can’t divorce that from the critical slopes.  Therefore, the Commission has to take action on both.  Staff has not concerns over the siting or the placement of the facility other than the critical slopes, and for that reason they are recommending denial of the critical slopes.  That is tantamount to recommending denial of the whole application.


Mr. Edgerton asked if the measurement of the reference tree went by the August 22 advisory ruling of the zoning administrator that they could use the drip line as opposed to the trunk.  He felt strongly that shift in policy is too significant for him to be comfortable with.  So he wanted to make sure that this is measured from the drip line and that this reference tree is not within 25’ to the trunk of the tree of the tower.


Ms. Yaniglos replied that was correct.


Ms. Joseph asked if staff was asking for certification from the surveyor as to the drip line.


Ms. Yaniglos replied yes, that the drip line must be shown on the plan.


Mr. Fritz noted that post development after it is constructed if there is a question prior to the issuance of the certificate of occupancy or the final zoning approval staff has gotten additional surveys to make sure it is placed correctly and the height is correct.


Ms. Joseph said that they were looking at this proposal as a special use permit because there are more than three towers. 


Ms. Yaniglos replied that is correct.


Ms. Joseph asked staff to discuss the visibility during the winter time noting that for six months of the year there will be no leaves on the trees.  She questioned why they can approve more than three towers in this one area along I-64.


Ms. Yaniglos replied that basically it would look like a brown tree pole and unless you were looking for it she did not think it would be noticed.


Ms. Porterfield questioned if there was another spot it could be located outside of the critical slopes.


Mr. Cannon assumed that the existing towers were reviewed under different administrative procedures.


Mr. Fritz said that it is possible that the existing towers are on critical slopes.  Staff did not go back and fully analysis every provision.  It is possible that once the finer grading detail was obtained that there were no critical slopes.  He did not know that for a fact, but wanted to throw that out. 


Mr. Cannon said that it was not determined whether the existing towers were on critical slopes or not as part of their review.


Mr. Fritz replied that he did not know the answer.  That was his way of saying that he cannot say that it was under a different interpretation of the ordinance.  It may have been an error that was done or there may have been a determination that there were no critical slopes.  But, he was unaware of any conscious decision to treat it differently.


Mr. Cannon asked if staff has been out to see how those critical slopes are doing with those three towers.


Ms. Yaniglos replied that she did not know if she would be able to determine that even if she did go out there.


Mr. Cannon said that staff has not determined that there may be non-critical slopes out there that would be appropriate for the siting of this tower in lieu of the site that was selected.


Ms. Joseph noted that the ordinance had changed. So the four prior towers were approved under a different ordinance.  What she heard staff say was that this came before the Commission and the Commission recommended not disturbing critical slopes and that condition was removed by the Board of Supervisors.


Mr. Fritz said that the other special use permits were all done as special use permits done prior to the adoption of the Personal Wireless provisions in the ordinance.  One of the facilities was built prior to the adoption of the Personal Wireless Service Facilities Policy.  In the actual policy is a photograph of this particular site that says like this and in essence this is the kind of way that one can mitigate impacts and still be located in areas that have substantial possible negative impacts.  So by careful siting one can do that, which is why staff can support the request if the critical slopes are approved, but they can’t support the critical slopes request.


Mr. Morris opened the public hearing and invited the applicant to address the Commission.


Stephen Blaine, representing Verizon Wireless, presented a power-point presentation. 

·         He noted that they are working out a network that will provide wireless services to citizens throughout Albemarle County.  Until a license was approved by the FCC, Verizon customers who locate from other areas to this area or maybe traveling through the Albemarle County area are roaming at all times.  When this project is completed they will be able to receive direct service from Verizon Wireless that will also increase the number and type of services that are available.  He wanted to spend some time on the critical slopes waiver request.  He felt the staff report does support a finding that they have met the requirements of the Wireless Ordinance to show that they have taken steps to mitigate the visual impacts.  The photographs were taken during the leafy season.  But, this is a heavily traveled way and one would be hard pressed to find these four existing four facilities, which makes this a unique opportunity site because it is so well suited for camouflaging the location. 

·         In terms of the critical slopes they want to make some points about the overall approach.  To staff’s credit they have noted that they do take into account critical slopes in siting these locations.  In the relative search area it is predominantly critical slopes that they are dealing with.  In the area in question around the VDOT overlook and the existing facilities there are few places, as Mr. Fritz pointed out, the only few places available are closer to the ridge line and they would have to cross significant areas of critical slopes to gain access to those areas.  So it is a multiple factor approach in that they look for the predominant feature, which is to mitigate visual impacts.  Certainly they are going to look for those sites that avoid critical slopes because it avoids the analysis, but also mitigates the measures that will describe this application that must be extra taken into account in how they protect those critical slopes.  That gives a picture of the challenge. 

·         Regarding what is on the grade, as staff noted, they would have to go back almost ten years back to see what was going on.  The initial CFW, no Ntelos permit, actually contained in the staff report and minutes stating that the site and the facility is located on critical slopes.  So they would have to reference for the record SP-99-10 CFW just to make sure that the record is clear.  There was a condition allowing a 75’ cross section to be cut in order to allow the path for the facility to be beside an old 20’ logging road.  So this is the cross section they were seeing today built out.  Originally there was a logging road and then cutting into the critical slope to create this pad.  It is an ideal pad because it is located behind the large trees.  That is the first approval, which clearly involved critical slopes.  There was a critical slopes ordinance in effect at that time.  The critical slopes ordinance goes back to 1989.  If there is an application for critical slopes it would apply to this site as it is being applied to their site.

·         Next was the ALLTEL site. The plans that were submitted clearly showed disturbance of critical slopes.  There was a waiver of the site plan requirement.  But, the waiver was granted on the condition that if critical slopes were encountered then they would submit a site plan.  The records revealed that a full site plan was never filed for SP-0030 ALLTEL.  Then the Triton, which is now AT&T, again the staff reports are modeled after the one previously that contained waivers of site plan requirements with the condition that if on the ground they encounter critical slopes that a site plan would be required.  In no case was a site plan submitted.  So clearly Verizon Wireless is being held to a different standard.  They have other evidence such as the site plan from ALLTEL where they did a slope analysis that shows that the area in yellow was in critical slope.  It was clearly encountered with the facility in question.

·         In SP-0041 Triton it says in that note that the leased area is within critical slopes.  This was submitted by the applicant.  So it is part of that record.  To answer Mr. Cannon’s question about how those critical slopes are doing, this is ten years later and he guessed they were doing okay. There is some erosion going on here.  If they contrast that with the Verizon application where they are actually taking steps through the site plan by submitting an erosion and sediment control plan, which is otherwise not required when disturbance is less than 10,000 square feet.  They are taking measures that the engineering department has noted in the staff report on pages 10 and 11 as their basis of approval of the critical slope waiver are going to mitigate this type of erosion that is seen there.  Beginning on page 10 it suggests by using finished grade stabilization with retaining wall, which are detailed on sheet C3 of the site plan.  It states avoiding excessive storm water run off or using gravel surface for specific measures that were not the standard at the time of these applications.  Verizon has no problem with exceeding the standard of what was submitted in those applications.  But, they ask that the Commission not deny the application by applying some new standard that is being created for Verizon Wireless.  They don’t have to do that. 

·         The Commission can grant the waiver because the engineering department has given a basis for that finding.  The analysis in the staff report was based on the statement that the existing facilities were located in an area where no critical slopes are present.  He felt that the record clearly refutes that.  That is the central focus of their finding under 4.2.5.  He asked the Commission to approve their request since the engineering department says they can address the issues and stabilize and achieve the purposes of the critical slopes ordinance.  They want to uphold the integrity of the critical slopes ordinance.  The way to respect and uphold it is to consistently apply it by using the criteria that the engineering department has set forth. 


Mr. Morris invited public comment.


Tim Scruby strongly encouraged the county officials to take into account what this special use permit application may mean to the welfare of rural residents in Albemarle County. He was concerned that the residents in our area will be tolerating another cell tower in a scenic environment and on a critical slope the very presence of which may worsen the changes of rural areas being served by reliable wired or fiber optic high speed internet services.  For the past 15 years internet access has been essential to his home based business in rural Greenwood.  His internet options are extremely limited and of inadequate speed and reliability to efficiently service his needs.  Many of the residents in the area have similar complaints and have had problems running businesses out of their homes and difficulty in selling their homes.  He urged the county not to approve this special use permit application without first giving their consideration to the welfare of the residents in the area. Perhaps there is room to negotiate a winning situation where the increased revenue to Verizon from the cell tower network could be used to help provide reliable wireless high speed service to area residents. 


Paul Cantrell echoed the previous speaker’s comments. The reason this is an issue specific to the people in the western part of the county is because Verizon is the provider for their land based telephone service.  This is unlike the rest of the county who gets their service from Embarq.  They have been talking with Verizon about providing land based DSL service.  He asked the Planning Commission to help the people who live here by denying their application and asking them to meet and to work to address the needs of the residents of the area as well.


Charles Pickanof, resident of Greenwood for 20 years, asked the Planning Commission to deny the permit on the basis of its visual impact.  He has a home business which depends on a reliable broad band service.   He has many problems with this and supports the previous speakers.


Mary Buford Hicks, representative for her brother Frank Bocock and herself, said that they own property contiguous to this property.  There are not buildings on the land.  She was confused about the height of the proposed pole.  The reference trees have gotten her confused and she was curious about what the final height is. 


Ms. Yaniglos said that the pole would be 73’.


Ms. Hipps said that height would appear much higher when it is on a critical slope.  She supported the other comments made by the previous residents.  She felt that the residents deserve better from Verizon.  The pole would be an eyesore and she was against the request.


James Herring, property owner, said that there appears to be a question about the critical slopes.  Those four towers are all setting on what at one time would have been a critical slope.  The towers are located on what was a pad that was cut out back in the early 80’s when this piece of property was allowed to be clear cut.  That whole piece of property was completely clear cut.  In the balloon test the line of trees was visible in that area.  The line is actually where that timber was cut.  He bought the property in the 90’s.  The pad was completely cut out from a pad where logs were loaded back in the early ‘80’s and the log trunks took the logs out of the area.  Each cell area has a 30’ X 40’ or a 40’ X 40’ leased area, which are all lined up in that space. 


Ms. Porterfield asked if there is more land in that area that has already been clear cut that could be used for one more tower, and Mr. Herring replied no. 


David Boothe, resident of Greenwood, said that the residents of Greenwood are the only folks in Albemarle County that can’t get high speed DSL broad band services.  He asked as part of the special use permit under public health and safety concerns that Verizon be requested to provide DSL service for the 1,800 customers in the Afton and Greenwood area.  The general welfare of the community would be improved by this service.  He hoped by the discussion tonight that it would bring Verizon to the table to negotiate with them.  They are outraged that they are being asked to host a cell tower in Greenwood to actually serve a wide section of the community.  This tower will not serve their DSL service needs.  Therefore, the special use permit will not protect the public health, safety and general welfare of the community if it is approved.


Laurie Patkin, a realtor and resident of western Albemarle since 1976, said that just to give them an idea of how this affects people in reality she was doing an open house a month ago for a family that needs to sell their house.  She had four families look at the house that day.  Not one of them would consider the house because it did not have high speed internet.  She lived in the first house after Embarq service stops.  She has problems maintaining her home business without a reliable internet service.  She noted that they need reliable service.


Mr. Morris closed the public hearing to bring the matter before the Commission.


Mr. Strucko asked Mr. Kamptner if in this instance if they look at the critical slopes issue, in his opinion, is Verizon held to a different standard if they make an issue of the critical slopes, particularly if they are taking erosion mitigation measures.  He asked if this is a violation of the Telecommunications Act if they say critical slopes are an issue in this particular case.


Mr. Kamptner replied that critical slopes should have been an issue in all of the applications because the critical slopes regulations have not changed. If the prior applications were not subjected to the critical slopes waiver he could not give them an answer as to why they were not.  The obligation of the county is to apply the ordinances as they exist.  He felt that the critical slopes waiver is appropriate to be considered in this case.  He could not give them a clear cut answer as to whether denial of the critical slopes waiver in this particular case runs afoul of the Telecommunications Act.  The two criteria that would be most concerning in this case is whether or nor the denial of this one particular facility constitutes the prohibition of services.  That is one of the restrictions on the zoning authority.  The Federal Court decisions in our federal circuit would say that the denial of a single facility would not be the prohibition of services.  The other factor would be in this particular circumstance would be whether or not they are discriminating amongst various carriers.  At this point it does not appear that there is any discrimination going on.  If any thing the worse case scenario back when the original applications were considered for some reason Section 4.2 was overlooked.  The third thing they will look for is that the decisions have to be supported by substantial evidence.  In this case, particularly when this goes on to the Board of Supervisors, he hoped that the analysis is a little clearer.  The conclusions were kind of ambiguous as to whether or not any of the findings required for the Commission could be satisfied.  They provided some additional information.


Mr. Strucko said that he had a question for staff.  In the section on the staff report analysis of the special use permit request one of the criteria will the use be of substantial detriment to adjacent property.  They heard one speaker, Mary Buford Hicks, who owns land contiguous to the property and she is concerned about the height.  In staff’s opinion does that change their conclusion regarding the standard and will it be of substantial detriment to adjacent property.


Mr. Fritz replied that he did not believe it would be a substantial detriment that it would deny the ability to use the property or severely limit or restrict.  Staff is looking at it in terms of the visibility of the site. Staff believes that it would not be a substantial detriment with the 73’ reference tree and its siting.


Mr. Loach asked that the Verizon applicant be asked to come forward and address the issue of the level of service.


Mr. Morris asked Mr. Blaine to describe where Verizon Cellular falls within the family of Verizon Companies.


Stephen Blaine replied that they operate as two different companies.  They are sensitive to the questions and concerns raised by the residents.   In their application the other services that they provide are mentioned, which include data services that are actually higher speed than DSL.  They are not here to sell the residents of Greenwood on wireless.  They are not here to suggest that approving this application is any way to extend the service.  If they make a case and there is a business reason for the land line company to extend DSL, then they will.  They are not refusing to extend service.  They are making a business judgment that it does not pay for itself.  With the advances in wireless it may be no longer necessary to have land line services.  They just throw that out there as a possible future alternative.  They also have propagation information.  The record has shown that they are not just interested in customers who are passing through this county, but also to serve the citizens of Albemarle.  They are here to provide a reliable service, which is the competitive edge that Verizon has on other carriers.  That is why they have 24-hour service emergency generators enclosed in the units.  The main point he wanted to make was that they are here to provide data services to the entire community.  As a follow up to Mr. Strucko’s comments, he would urge them not to approve this because there is a discrimination going on.  But, he had to make sure that the record is established.  In his remarks earlier he noted that they expect to have to meet the requirements and the criteria of the critical slope ordinance.  They did not expect to be exempted from it, like these other companies.  In the staff report he believed there are recommendations from engineering that are what the critical slope ordinance is about.  They feel they can address the critical slopes with the mitigation elements in their site plan, which are not in the other site plans.  He felt that the Commission can make the findings applying the critical slope ordinance.


Mr. Loach if for the record he was saying by implementing the cellular tower he would be able to offer these residents equivalent data services that they would have had under DSL or land mines that would have come in.


Mr. Blaine felt that was a bit of an overstatement.  They can’t say with this site that they are going to provide services, but they know that they have a network and they are leasing sites in and around the Yancey Mills/Parsons Green area.  If they get those sites approved then they will be able to provide this voice data wireless service to mostly all of the 456 exchange.  That is reliable service, but there may be marginal service.  They are happy to sit down with the residents and explain those services.  But, he did not want to say that they were here to sell them on this service as an alternative.  It is something that they have to recognize that the technology is ever changing.  They would like them to have as high speed services as available out there.


Mr. Edgerton said that last week the Commission was surprised to learn that the determination of the measurement from the proposed tower and the reference tree had been changed back in August without any notification to the Commission.  He did not think that the reference tree serves in the role it is suppose to with the new interpretation that allows the 25’ to be measured not to the trunk of the tree as it was up until August 22.  A colleague last week agreed to relocate the tower by the old standard rather than waiting until they had a work session, which was scheduled at the end of April.  He asked if he was prepared to make that same offer.


Mr. Blaine replied that they were.  He asked that they not lose site of what they just talked about.  They want to have reliable criteria so that they can go out and set their parameters.  If they are changing interpretations in mid-stream it does not help them either.  The willingness is there, but he asked that they just get a rule and stick with it.


Ms. Joseph noted that she lived in the rural areas, has a home business and receives big files. She has a satellite dish that is very reliable.  One problem she had was that it was hard to support additional more urban services in the rural areas.  They are not here to make sure that this area gets services.


Mr. Cannon said that he was in a similar situation in that he did not have internet services.  He was sympathetic.  His question for counsel is whether this provision of service or failure to provide service is a consideration that the Commission that they may take into account in ruling on this application or they precluded from considering that. 


Mr. Kamptner replied that his counsel would be that the Commission and Board of Supervisors are precluded from considering this.  Even if Verizon Wireless provided land mine services what a condition would be to propel an applicant to provide a particular service.  The conditions that are attached to special use permits have to be designed to reasonably address the land use related impacts resulting from the approval of a special use permit.   This kind of condition touching on what the courts would call social economic zoning.  This one is obviously is more of the economic side of it and would require a business to provide a particular service that is not related to the application.


Mr. Loach said that they cite the public health, safety and general welfare in the community to be protected if the use is approved.


Mr. Kamptner replied that language needs to be read in the context of where it is in the zoning ordinance.  Those issues are limited to land use related issues applying again what the courts have described as applying sound zoning principles.  Certainly the condition that addresses the height of the facility is appropriate.  But, imposing a condition that is in effect going to be impossible would be struck down as an invalid condition.  Verizon Wireless license is limited to providing a particular type of service. 


Mr. Strucko asked if was feasible that they could grant the critical slopes waiver contingent upon Verizon either itself or its subsidiary providing services to citizens of the county.


Mr. Kamptner replied no, that would be an improper condition attached to the critical slopes waiver.


Ms. Joseph asked if staff was able to go on adjacent properties to view the visibility or did they use topo to analysis whether or not it would be visible from the adjacent properties.


Ms. Yaniglos replied that staff did look at the topography.  But, staff was not able to go on adjacent properties.  It was difficult to get to the site itself.  There is a ridge line that borders the adjacent properties. 


Mr. Porterfield asked how many poles in one area is enough?  This proposal is before the Commission is because there are so many towers.  She asked if they want to create “pole” neighborhoods or have less towers and stick with the Tier II restrictions. 


Mr. Kamptner said that one possible solution to that question may be the criteria that are applied for special use permits.  One is considering each application and whether it creates a substantial detriment to adjacent properties and whether or not it changes the character of the district.  The other is that the use is in harmony with the district.  But, the first two are standards that the Commission can consider in determining whether or not the cumulative effects eventually reach the point where there is a substantial detriment or the character of the district is changed.


Mr. Fritz noted that in the development of the Wireless Policy there was a great deal of discussion about just that in where should the tipping point be between Tier II and Tier III.  There were many long meetings and the analysis was three.  The question did arise was there ever a maximum number that could occur in any particular location.  The answer that came out was no that there is no magic answer.  They have to look at each application on the merits of it given the totality of the site.  The question has been asked and there is magic answer.  That is why it is a special use permit.  In this particular case the staff analysis is that this is appropriate. But, it goes through a Planning Commission review and a Board review and they can review it and make an analysis.


Ms. Yaniglos pointed out that one of the other approved towers is taller than this one that is being proposed.   The existing tower is 91’ tall.  This tower is proposed at 73’.


Mr. Cannon noted that the counsel for el for applicant referred to engineering reports that supported in their view the critical slopes waiver.  Staff has recommended against granting the critical slopes waiver.  What are the relative differences between staff’s recommendation and the engineering analysis if the engineering analysis as represented supportive.


Mr. Fritz replied that the engineering analysis is really addressing the specific provisions of Section 4.2.  It is the purpose and intent of the critical slopes provisions.  When you go to the review of the request by current development planning staff that starts on page 11 they are going through the various specific criteria by which the Planning Commission can grant the waiver.  The Commission has to make a positive finding on one, two or three.  They don’t have to make a positive finding on more than one of those sections.  He pointed out that item one has 2 provisions to it.  It is that the strict application of the ordinance would not forward the purpose or that the alternatives proposed by the developer would satisfy the purposes of Section 4.2 to at least an equivalent degree. The area where they may be able to make their positive finding, which is why staff provided mixed findings, would be in that the protective measures proposed by the applicant of an erosion control plan, the gabions they are proposing to use and the limited area provides an equivalent level of protection to the critical slopes.  It accomplishes the protection of the critical slopes better identified in Section 4.2.  Typically staff has limited recommendations of approval for the purposes of the alternatives proposed by the applicant to situations where they really have active erosion and where they would actually improve the situation by stabilizing it with fill and otherwise maintaining it.  However, the engineers in this case have made a finding that it has limited impacts on some of the criteria that are outlined in Section 4.2.  That is one area where the Commission might be able to make a positive finding.


Mr. Cannon asked if engineering has concluded that the impacts of this on critical slopes would be neutral given the mitigation measures that are adopted.


Mr. Fritz noted that engineering staff was here, but he would summarize what they have said.  They said that they believe that the applicant has appropriately mitigated the impacts.


Mr. Cannon asked what appropriately mitigated means.


Mr. Morris invited the engineering representative to address the Commission.


Jon Sharp, with engineering staff, noted that for appropriately mitigating they have to meet all five of the criteria listed on pages 10 and 11.  It talks about movement of soil and rock, excessive storm water run off, siltation of natural and man-made bodies of water, loss of aesthetic resource and septic effluent.  Under each of those it lists whether that criterion applies and what the applicant is doing to mitigate.


Mr. Fritz said for example on the movement of soil and rock they are minimizing potential movement of soil and rock by utilization of gabion retaining walls, which is shown on the plan.  For the run off they are proposing the geo-synthetic fibers for the siltation. They are doing an E & S plan even though they are not required to do one because of the limited area.  Those are the measures they are taking.  The loss of aesthetic resources is always tricky.


Mr. Morris asked Mr. Sharp if based upon his analysis it says that engineering recommends approval of the critical slopes waiver.


Mr. Sharp replied that was correct.


Mr. Cannon asked if it was his opinion that the mitigation measures satisfy the purposes of Section 4.2.2 to an equivalent degree as no disturbance.  Is there any net damage flowing from the disturbance of critical slopes here in any of the relevant dimensions that he examined?


Mr. Sharp said that this is kind of tricky because mitigation assumes there is some net damage and they are taking corrective steps. 


Mr. Cannon asked if their corrective steps equivalent to off set the damage.


Mr. Sharp replied yes, that the engineering analysis has concluded that is correct.


Ms. Joseph asked if there is anything else that they could do to improve their mitigation measures.


Mr. Sharp replied possibly one of the biggest steps is to complete the project as soon as possible.  The quicker it is in and stabilized the quicker the control of any run off sediment. 


Mr. Strucko asked if ultimately moving it to a site that does not disturb critical slopes is the best mitigation.


Mr. Sharp replied that is correct.


Motion: Ms. Porterfield moved, Mr. Strucko seconded, for denial of SP-2007-00065 Herring Property/Verizon Wireless Tier III PWSF based on the fact as supported in part of this that five monopoles is too many and that they were not willing to create another Carter’s Mountain any place right now until they figure out whether it is better for monopoles to be grouped together or to be spread out to be less obtrusive. 


Ms. Joseph asked to clarify and add an amendment to the motion to add a reference to Section 5.1.40.d.3 that it does adversely impact the county’s open space plan. 


Ms. Porterfield accepted the amended motion, which was seconded by Mr. Strucko.


The motion for denial failed by a vote of 3:4.     (Mr. Cannon, Ms. Porterfield and Mr. Strucko voted aye.)  (Mr. Morris, Ms. Joseph, Mr. Edgerton and Mr. Loach voted nay.) 


Mr. Morris noted that the motion for denial did not carry.  Therefore, he asked for another motion.


Motion on SP-2007-00065:


Motion: Mr. Loach moved, Ms. Joseph seconded, for approval of SP-2007-00065 Herring Property/Verizon Wireless Tier III PWSF subject to the conditions recommended by staff. 


Mr. Edgerton asked for an amendment to the motion that the applicant has agreed to move the tower closer to the reference tree as desired by the Commission.


Mr. Morris pointed out that the distance is going to be taken from the trunk of the reference tree instead of at the dripline, and Mr. Edgerton agreed.


Mr. Loach amended the motion to include Mr. Edgerton’s suggestion, which was seconded by Ms. Joseph.


The motion for approval passed by a vote of 4:3.   (Mr. Morris, Ms. Joseph, Mr. Edgerton and Mr. Loach voted aye.)  (Mr. Cannon, Ms. Porterfield and Mr. Strucko voted nay.) 


Mr. Morris noted that SP-2007-00065, Herring Property/Verizon Wireless Tier III PWSF would go to the Board of Supervisors with a recommendation for approval on May 7. He noted that the Commission needs to take action on the critical slopes waiver.


Motion on Critical Slopes Waiver:


Motion: Mr. Strucko moved, Ms. Porterfield seconded, for denial of the waiver of Section 4.2.5, the disturbance of critical slopes, for SP-2007-00065 Herring Property/Verizon Wireless Tier III PWSF as per staff’s recommendation in that the Commission can’t make any of the three alternative findings under Section 4.2.5.b.


The motion for denial passed by a vote of 4:3.     (Mr. Cannon, Ms. Porterfield, Mr. Strucko and Mr. Edgerton voted aye.)  (Mr. Morris, Ms. Joseph and Mr. Loach voted nay.)


Mr. Morris noted that the critical slopes waiver request for SP-2007-00065, Herring Property/Verizon Wireless Tier II PWSF would go to the Board of Supervisors with a recommendation for denial on May 7.


The Planning Commission took a ten minute break at 8:07 p.m.


The meeting reconvened at 8:18 p.m.



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