Partial Set of Minutes for
SP-2003-70, Gregory R. Gallihugh-Nextel Partners
The Albemarle County Planning
Commission held a meeting and a public hearing on
Other officials present were
SP-2003-70 Gregory R. Gallihugh-Nextel
Partners (Sign #59) - Request for special use permit to allow the construction
of a personal wireless facility with a monopole, approximately 85 feet in total
height and 10 feet above the height of the tallest tree within 25 feet. The proposed facility includes flush-mounted
panel antennas and ground equipment.
This application is being made in accordance with Section 10.2.2.6 of
the Zoning Ordinance which allows for microwave and radio wave transmission and
relay towers in the Rural Areas. The
property, described as Tax Map 74, Parcel 2C, contains 2.78 acres, and is zoned
RA Rural Areas. The proposal is located
Mr. Waller summarized the staff report. This request is for the installation of a personal wireless service facility with a metal monopole that would be approximately 85 feet in total height and have a top elevation that would be approximately 720 feet above sea level. The monopole would be equipped with one array consisting of three 8 foot long by 1 foot wide and 7-inch deep flush mounted panel antennas. The 8 feet is actually a correction. For some reasons the last page of the applicant’s construction plans did not make it into the transmittal that was copied and delivered to the Planning Commission or to one provided for the public. This page actually shows the correct antenna sizes and it also shows an elevation of the proposed shelter that would be installed with the facility. He pointed out that during the review of the request that staff observed a balloon test with a balloon that was floated at the proposed height of this monopole. The balloon was visible above the trees from a portion of the road right-of-way of State Route 637 and from a portion of an adjacent property located to the west of the site. Staff notes that due to the difference in the proposed height of the monopole and based on the observance of the balloon test that the monopole would be skylighed from several of the near by properties around the site. He pointed out a few corrections that should be made in the staff report. On page 4 in the second paragraph, it starts with staff has determined that a rather large portion of the proposed monopole would extend above the tree tops of the surrounding forest when viewed from at least one adjacent property and the road upon which the subject parcel has frontage. The next sentence should read that this would result in the introduction of a facility that would not blend well within its natural surroundings. On page 5 in the fifth paragraph, it starts with Section 1.5 from the Zoning Ordinance and then in the next to the last paragraph that starts with however due to the combination of the size of this parcel and the wooded area surrounding the site. He pointed out that the word site was left out in that sentence and it should say the area surrounding the site. He pointed out that the plans were revised at the time that the applicant requested the deferral. He stated that in the analysis for the waiver from the adjacent parcel that the waiver request information stated that based on the requirements of Section 22.214.171.124.b, the structure should be set back 80 feet from the western property line. However, instead of pursuing a fall zone easement the applicant is requesting approval of a waiver in accordance with Section 126.96.36.199.c. She reiterated that the applicant is still requesting that waiver. The next paragraph in that section states that the fall zone for the proposed monopole would extend 31 feet into the adjacent property because the location of the pole was shown in a different location on the current plans, which would actually only extend 20 feet into the fall zone. Because of that, the monopole would no longer extend in to the 25-foot side yard setback. It would be outside of that, 25-foot side yard setback on that adjacent parcel. Additionally, the staff report states that the distance to the nearest off site dwelling was 320 feet, but it was actually 375 feet. Some of that distance is also made up because of the difference in the pole location. Staff also notes that the current pole location is being reviewed on the plans. It is the same location that the balloon test photos were taken, but the plans just came in after the original balloon test.
Mr. Loewenstein asked if he would clarify that the balloon test that they have copies of in their packets are of the current location.
Mr. Waller clarified that their copies of the balloon test were of the current location. He pointed out that staff has reviewed this request. Based on the analysis of visual impacts that are provided in the staff report, staff recommends denial of the plan. However, staff is also recommending if the Planning Commission or the Board sees it appropriate to approve this request that the conditions of approval that are provided at the end of the staff report be applied to this. Most of those recommended conditions are for the standard conditions of approval that are applied to the Tier II Wireless Facilities with some additions that are specific to this location.
Mr. Rieley asked if there were any questions for Mr. Waller.
Mr. Thomas asked if the panels were 6 feet long.
Mr. Waller stated that the panels would be 8 feet long, but the additional 2 feet on the panels would not increase the height of the tower.
Mr. Rieley asked if there were any other questions for staff. Since there were none, he opened the public hearing and asked if the applicant would like to address the Commission.
Mr. Thomas asked Ms. Long to finish the discussion regarding the setback issues. He asked if the staff report was a follow through from the previous report that the applicant has not provided any information for the availability or lack thereof an alternative site.
Ms. Long stated that she had not stated clearly and concisely that perhaps there is not another available site in this area. At the time that this application was submitted, this was the only available property that Nextel Partners was able to identify that met the objectives. She pointed out that they obviously needed a landowner that was willing to lease property to them. They need a property that is located in close proximity to the coverage objective, which in this case was the interstate. Ideally, they look for properties that have an existing access road that would not require grading, clearing and tree removal. The property needs to be somewhere near some trees and meet a basket of criteria. She stated that this was the only property at the time that Nextel Partners was aware of.
Mr. Thomas asked that she talk about the setback issues a little bit.
Ms. Long stated that she would like to clarify again that the pole was to be located 65 feet from the western property line. That creates a fall zone area of 20 feet so that in the incredibly unlikely event that the pole was to collapse, and there have been no reports of such things, the top of the pole would extend 20 feet. If the tower fell in that direction, it would extend 20 feet over the boundary lines. Therefore, they have a 20-foot fall zone area. The County policies require that the towers be set back from the property line at a distance equal to the height of the structure. If that cannot be met, one of two things is available. Either the Commission could waive the setback requirement upon a finding that the public health, safety and welfare would be equally or better served or the applicant could obtain an easement from the adjacent property owner, which would restrict development of any buildings or structures within that “fall zone area.” She stated that they attempted to contact the adjacent landowner to discuss this issue with him, but they have not been successful in that regard. In addition, they went ahead in the beginning with their application and requested that the Commission waive it. She pointed out that it was something that they do every time and was part of the process. She stated that they submitted the application at the beginning and has continued to work with the neighbor by trying to contact him. The fall zone area is within the setback for the rural areas in that all structures within the rural area have to be located no more than 25 feet to the side property line. This is called the side yard setback area. In essence, if they were to obtain an easement and were able to get one from this landowner, the easement would require he and his family to not locate any buildings or structures within that “fall zone area.” However, the Zoning Ordinance already restricts any buildings or structures within that area because it is the side yard. Absent from obtaining a variance from the Board of Zoning Appeals, the property owners could not locate a structure there anyway. Given the fact that the fall zone area is now smaller and within the boundaries of that side yard, she felt that the Commission could reasonably make a finding that the public health, safety or welfare would at least be equally served by waiving the setback requirement. There is no greater protections that are granted by a fall zone easement because you are restricting development that is already restricted by the Zoning Ordinance.
Mr. Thomas asked if they were able to contact the neighbor.
Ms. Long stated that they contacted him by phone several times and Ms. Eubanks, of Nextel Partners, contacted him as well. She stated that she would appreciate to be able to respond to any comments.
Mr. Rieley stated that there were four persons signed up to speak on this issue. He pointed out that the first person to speak was Charlotte Hogue.
Charlotte Hogue voiced concerns about having a second cell tower being placed on such a small lot so close to the property line. She asked if there was any limit as to how many towers can be located on a small piece of property. She stated that this certainly devalues the nearby properties. Also, she noted that she was very upset about the actions of the surveyors since they were all over her property, climbing on the woven wire fences, walking all around and standing behind the house scaring the lady there who has a very serious heart condition. She stated that they also cut her tree. She pointed out that the surveyors did not ask permission nor tell her that they cut the tree. Also, they did not knock on the door when they came near the house and they had no idea who they were as their vehicle was not where it could be easily identified. She stated that why they were even on her property eludes her because this property does not adjoin the proposed tower site. She stated that she was certainly opposed to seeing another tower from her windows.
Mr. Rieley asked Leslie H. Jones to come forward to address the Commission.
Ms. Jones, the daughter of Leslie Jones, stated that her father had to leave. She pointed out that he was present to speak about Route 795, the trespassing on his property and what was happening on the road. Since he was not here, they would bring these matters up at another time.
stated that he owned property on both sides of the proposed tower site. The
proposed tower site will be located closer to his home than the previous
one. He stated that pictures of cell
tower sites do not always tell the truth and can shift angles to have a tree in
between. He stated that it was hard for
him to move the windows in his home. He
pointed out that most of the trees around this site are hardwoods with very few
pines. The present tower is very visible
from inside his home. The proposed site is very close to the edge of the
woods. Most of the trees on the
Tammy Gallihugh stated that she was the property owner of the land that Nextel Partners wanted to put the tower on. She stated that they have worked very hard with Nextel to try to comply with all of the conditions that are requested from the staff. She pointed out that there is an existing tower on the property. She stated that they have had a lot of people looking for the tower who could not find it that have stopped at her house to ask about it. She pointed out that she has had to show them where the tower was located. She requested that the Commission approve the tower because she was disabled and it would help take care of her family. She thanked the Commission for their favorable consideration.
Mr. Rieley asked if anyone else would like to address this special use permit application. There being none, he closed the public hearing to bring the matter before the Commission for discussion and possible action. He asked Mr. Long if she wanted some time for rebuttal. He stated that he would open the public hearing for Ms. Long’s rebuttal.
Ms. Long asked to respond to Ms. Hogue’s comments. She stated that she spoke with Ms. Hogue when she tried to reach her son and she did make her aware of their concerns regarding the surveyors. She pointed out that she spoke with the surveyors that carried out the site work for Nextel Partners, but was not sure what happened. The surveyors assured them that they had no reason to be on anybody else’s property other than the Gallihugh’s property to carry out their work. She expressed her appreciation to Ms. Hogue for making her aware of that so that Nextel Partners and the surveyors could be aware of that. She pointed out that she was not aware of any reason why they would have had to cut any trees. They certainly would not have done that without anyone’s permission. Nextel Partners assured her that was well beyond the scope of any procedures that are ever carried out. Ms. Gallihugh has indicated that they have a problem with trespassers in the back of their property of hunters and so forth. She noted that she did not have any idea if there was a connection. She pointed out that they were aware of that and have attempted to address that concern with their surveyors.
Mr. Edgerton pointed out that in Ms. Long’s earlier discussion that she indicated that no trees would have to be cut. He pointed out that there was a drawing in the packet showing a clearing with a grading plan. He stated that he wanted to be very specific about that because if they have located it in such a way that there was no required clearing that he wanted to know.
Ms. Long stated that they do not anticipate the need to remove any trees at this time and they were not asking for any permission to remove any trees. She stated that they were not planning on removing any trees of any size. Originally, in one of their prior versions of the plan there was one tree, number 18, that was about 33 feet tall that they were planning to remove in order locate the Ice Bridge. She noted that when she became aware that the conditions of the Alltel facility that was on the same parcel that absolutely restricted any tree removal within 200 feet, that they revised the plans to route the Ice Bridge around that tree. Originally, they thought that the Planning Director would have the discretion to permit very limited tree removal for small trees that did not impact the screening. Regardless, once they learned that was not permissible they relocated the ground equipment slightly and shifted the shelter location to make some room to be able to work around that tree. Then they submitted a revised set of plans to the arborist that they have engaged to have him review the plans and reassure them that by revising the ground equipment location they would not do anything to impact that tree or any other tree. She noted that the arborist’s comments were supportive in that regard.
Mr. Craddock stated that Mr. Hogue talked about the noise from the cell tower. He asked what type of noise that he was referring to.
Ms. Long stated that she had never heard any of the cell towers that she has been around making noise. She pointed out that Ms. Gallihugh said that since the recent ice storm it has been emitting some humming noises. She stated that this evening was the first time that she had learned of this. Therefore, she indicated to Ms. Gallihugh that she needed to contact Alltel and let them know that they have a maintenance issue. She stated that the existing tower should not be emitting any noises. She noted that towers should essentially be silent. She stated that the towers might not be 100 percent silent, but that certainly it should not be emitting a noise that is at a level that Mr. Hogue could hear it from his home.
Mr. Craddock asked if they have any air conditioners located in their shelters.
Ms. Long stated that she thought that they actually do have a very small air conditioner, but she would ask that Ms. Roland Eubanks come up because she did not know much about that. She stated that it was her understanding that there has to be some sort of a cooling system to cool the radio equipment that is in the cabinet.
Ms. Eubanks stated that the air conditioning unit sets inside the equipment cabinet.
Ms. Long pointed out that in this case the unit would be enclosed within a small shelter. Therefore, the unit would actually be inside a small building.
Ms. Eubanks stated that there should not be any noise emitted.
Mr. Craddock pointed out that it was probably a maintenance issue.
Ms. Long stated that she would help address that issue with Alltel as well.
Mr. Rieley closed the public hearing to bring the matter back to the Commission for discussion and possible action.
Mr. Loewenstein stated that the tower was pretty visible, which essentially was the crux of it. He pointed out that the Commission has seen a lot of these and that there are cases where it may be very difficult to decide because there was just a tiny bit of visibility. He stated that he felt that this case goes beyond that. He noted that he was concerned about the visibility issue and the fall zone issue. He felt that the staff made the right decision in recommending denial.
Mr. Edgerton concurred with Mr. Loewenstein.
Mr. Thomas stated that the visibility issue was not as big of an issue as the fall zone issue.
Mr. Rieley stated that he did not recall a case in which they have granted a waiver when the adjacent property owner objected.
Mr. Craddock stated that the neighbor could put a shed in that location.
Mr. Rieley stated that he would like to point out one positive aspect about this application. He stated that the arborist’s report was really excellent and was a model of what the Commission should be looking for in terms of the importance of the health of the trees in the surrounding area. He asked if there was a motion.
Mr. Loewenstein moved for the denial of SP-2003-70, Gregory R. Gallihugh/Nextel Partners.
Mr. Edgerton seconded the motion.
The motion for denial carried with a vote of (5:0). (Finley – Absent)
Mr. Loewenstein moved to recommend denial of the waiver request for SP-2003-70, Gregory R. Gallihugh/Nextel Partners.
Mr. Edgerton seconded the motion.
The motion carried with a vote of (5:0). (Finley – Absent)
Mr. Rieley stated that the waiver request had been denied. He stated that SP-2003-70 would go to the Board of Supervisors with a recommendation for denial and would be heard on January 14th.
Mr. Cilimberg stated that the staff report contained a number of recommended conditions. He stated that should the Board of Supervisors approve the request, he suggested that the Planning Commission recommend that those conditions be included.
It was the consensus of the Planning Commission that in the event that the Board of Supervisors approves the request that the conditions recommended in the staff report be included.
With the exception of any
minor changes that would be required in order to comply with the conditions
listed herein, the facility including the monopole, the ground equipment
building, and any antennas shall be sized, located and built as shown on the
construction plans entitled, “Nextel Partners - Gallihugh Site”, last revised
2. The calculation of pole height shall include any base, foundation or grading that raises the pole above the pre-existing, natural ground elevation.
3. The top of the pole, as measured Above Mean Sea Level (AMSL) shall never exceed seven (7) feet above the top of the tallest tree within 25-feet tree, identified as T-20 on Sheet C-4 of the construction plans. In no case shall the pole exceed 85 feet above the existing ground elevation at the time of installation without prior approval of an amendment to this special use permit or personal wireless facility permit.
4. The metal monopole shall be painted a brown wood color that is consistent with the trees surrounding the site.
5. The ground equipment cabinets, antennas, concrete pad and all equipment attached to the pole shall be the same color as the pole and shall be no larger than the specifications set forth in the application plans.
6. Only flush-mounted antennas shall be permitted. No antennas that project out from the pole beyond the minimum required by the support structure shall be permitted. However, in no case shall the distance between the face of the pole and the faces of the antennas be more than 12 inches.
7. No satellite or microwave dishes shall be permitted on the monopole.
8. No antennas or equipment, with the exception of a grounding rod, not to exceed one-inch in diameter and twelve (12) inches in height, shall be located above the top of the pole.
9. No guy wires shall be permitted.
10. No lighting shall be permitted on the site or on the pole, except as herein provided. Outdoor lighting shall be limited to periods of maintenance only. Each outdoor luminaire shall be fully shielded such that all light emitted is projected below a horizontal plane running though the lowest part of the shield or shielding part of the luminaire. For the purposes of this condition, a luminaire is a complete lighting unit consisting of a lamp or lamps together with the parts designed to distribute the light, to position and protect the lamps, and to connect the lamps to the power supply.
11. The permittee shall comply with section 5.1.12 of the Zoning Ordinance. Fencing of the lease area shall not be permitted.
Prior to the issuance of a building permit, the following requirements shall be met:
12. Size specifications and other details, including elevation drawings of the antennas and ground equipment shall be included in the construction plan package.
13. Certification by a registered surveyor stating the height of the reference tree that has been used to justify the height of the monopole shall be provided to the Zoning Administrator.
14. Prior to beginning construction or installation of the pole, the equipment cabinets or vehicular or utility access, an amended tree conservation plan, developed by a certified arborist shall be submitted to the Zoning Administrator for approval. The plan shall specify tree protection methods and procedures, and identify any existing trees to be removed on the site - both inside and outside the access easement and lease area. All construction or installation associated with the pole and equipment pad, including necessary access for construction or installation, shall be in accordance with this tree conservation plan. Except for the tree removal expressly authorized by the Director of Planning and Community Development, the permittee shall not remove existing trees within two hundred (200) feet of the facility. A special use permit amendment shall be required for any future tree removal within the two hundred-foot buffer, after the installation of the subject facility.
15. With the building permit application, the applicant shall submit the final revised set of site plans for construction of the facility. During the application review, Planning staff shall review the revised plans to ensure that all appropriate conditions of the special use permit have been addressed.
After the completion of the pole installation and prior to the issuance of a Certificate of Occupancy or to any facility operation, the following shall be met:
16. Certification by a registered surveyor stating the height of the pole, measured both in feet above ground level and in elevation above sea-level (ASL) using the benchmarks or reference datum identified in the application shall be provided to the Zoning Administrator.
17. Certification confirming that the grounding rod’s: a) height does not exceed two feet above the tower; and, b) width does not exceed a diameter of one-inch, shall be provided to the Zoning Administrator.
No slopes associated with construction of the
facility shall be created that are steeper than 2:1 unless retaining walls,
revetments, or other stabilization measures acceptable to the
After the issuance of a Certificate of Occupancy, the following requirements shall be met:
19. The applicant, or any subsequent owners of the facility, shall submit a report to the Zoning Administrator by July 1 of each year. The report shall identify each personal wireless service provider that uses the facility, including a drawing indicating which equipment, on both the monopole and the ground, are associated with each provider.
All equipment and antennae from any individual
personal wireless service provider shall be disassembled and removed from the
site within ninety (90) days of the date its use is discontinued. The entire facility shall be disassembled and
removed from the site within ninety (90) days of the date its use for personal
wireless service purposes is discontinued. If the Zoning Administrator determines
at any time that surety is required to guarantee that the facility will be
removed as required, the permittee shall furnish to the Zoning Administrator a
certified check, a bond with surety satisfactory to the County, or a letter of
credit satisfactory to the County, in an amount sufficient for, and conditioned
upon, the removal of the facility. The
type of surety guarantee shall be to the satisfaction of the Zoning
Administrator and the