PUBLIC HEARING AGENDA REQUEST

 

Owners/Applicants:

  Board of Supervisors Meeting Date

Jackie Shay McNeal (Owner )
T-Mobile Northeast, LLC (Applicant) 

February 18, 2010

Staff Lead:

 Department: 

Melissa Dargis, Assistant Chief of Planning

Community Development

 

Magisterial District:
Marshall

 

PIN:
6031-63-0308-000

Service District: 
None

 

Topic:

A Resolution to Deny TWSE09-MA-002: Category 20 Special Exception to Install a Ten (10) Foot Extension to an Existing Seventy-Eight (78’) Foot Monopole; Add Three (3) Flush Mount Antennas; and Add Three (3) Ancillary Equipment Cabinets at the Base of the Pole  - Marshall District

 

Topic Description: 

The applicant is seeking Special Exception approval to construct an extension to an existing personal wireless service facility pursuant to Section 11 of the Zoning Ordinance. The subject parcel is approximately 49.87 acres in size.  The applicant proposes to install a 10’ extension to an existing 78’ tall stealth monopole (camouflaged with a pixilated fabric coating), add three (3) flush mount antennas to the monopole, and three (3) equipment cabinets located at the base of the monopole. A copy of the Special Exception Plat is included as Attachment 1.

The Applicant contends in the Statement of Justification (Attachment 2) that this proposed addition to the structure is needed to meet its coverage objective to: 1) provide in-vehicle coverage to T-Mobile subscribers traveling along John Marshall Highway and I-66 between Marshall and Markham; and 2) provide/improve in-building coverage for the T-Mobile subscribers residing in Delaplane and the surrounding area.  The increase in the height of the existing tower would accommodate a new service provider.  The applicant indicates the location is the result of researching co-location opportunities on existing structures in the area.  The location of the existing tower matched the applicant’s need for signal coverage. 

 

Location, Zoning and Current Land Use:

The property is located at 3175 Aspen Dale Lane off John Marshall Highway (Route 55).  The parcel is zoned Rural Agriculture (RA) and Rural Conservation (RC) and is in agricultural use.

The property has road frontage along Route 55, a Virginia Byway.  The Scenic Byway program recognizes road corridors possessing aesthetic or cultural value near areas of historical, natural or recreational significance.  The program encourages travel to interesting destinations and away from high-traffic corridors.  Byways also stimulate local economies by attracting visitors to lesser-known destinations.  Byway designation does not affect land use controls or limit road improvements.

Zoning Map

 

 Surrounding Zoning and Current Land Use: 

Surrounding properties on the north, east and west sides are also zoned RA.  The southern side of the property is adjacent to Rural Conservation (RC) zoned land. 

Many of the properties in the area, including this one, are in conservation easements.  On the map below, non-Common Open Space easements are shown in red and Board of Supervisors’ conservation easements are shown in purple. 

Easement Map

Comprehensive Plan/Land Use:

The Comprehensive Plan designates this area for rural agricultural uses.

Public facilities not shown in the Comprehensive Plan require a Code of Virginia Section 2232 review to determine if they are in substantial accord with the Comprehensive Plan.  The Fauquier County Comprehensive Plan states that towers 80 feet in height or less are deemed to be a feature shown.  Thus, the original tower did not require a 2232 review.  However, towers greater than 80 feet are subject to a 2232 review.  This application seeks to add a 10 foot extension to an existing telecommunications facility that is a 78 foot monopole.  The requested height of the tower is 88 feet. 

On December 9, 2009, the Planning Commission made a finding that the proposal was not in accord with the adopted Comprehensive Plan.  The Board of Supervisors may either concur with the Planning Commission’s finding or overrule it.

Site History:

On February 4, 2004 a Major Site Plan for a telecommunications tower was approved for this site.  On January 25, 2005 and March 25, 2005 co-locations were approved for the tower.

On December 28, 2007 a conservation easement with the Fauquier County Board of Supervisors was recorded on this site.  Its purpose includes “retaining and protecting open space and natural resource values of the property and ensuring the property will be perpetually available for agriculture, livestock production, forest, and open-space use by placing limitations from further subdivision, construction of residential structures, and commercial and industrial uses permitted on the property…”  However the easement does specifically allow for the tower use.

 

Special Exception Analysis:

All Special Exceptions are subject to the general provisions set forth in Chapter 5 of the Zoning Ordinance.  Section 5-001.1 states “There are certain uses which, by their nature, can have an undue impact upon or be incompatible with other uses of land within a given district.  These uses as described may be allowed to locate within certain designated districts under the controls, limitations and regulations of an administrative permit, special permit, or special exception.”  Further Section 5-006.1 says:

5-006                             General Standards for Special Permits and Special Exception Uses

In addition to the special standards set forth hereinafter for specific uses, all special permit and special exception uses shall also satisfy the following general standards:

1.   The proposed use shall be such that it will not adversely affect the use or development of neighboring properties.  It shall be in accordance with the applicable zoning district regulations and the applicable provisions of the adopted Comprehensive Plan.  The location, size and height of buildings, structures, walls and fences, and the nature and extent of screening, buffering and landscaping shall be such that the use will not hinder or discourage the appropriate development and/or use of adjacent or nearby land and/or buildings or impair the value thereof.

General Standards (5-006) require, among other things, that the proposed use shall not adversely affect the use or development of neighboring properties, the pedestrian and vehicular traffic generated will not be hazardous or conflict with the anticipated traffic in the neighborhood and on the streets serving the site, and adequate utilities to serve the site are provided.  Although a tower is allowed under the terms of the property’s conservation easement, the proposed 10-foot extension would exceed the allowable by-right height of 80 feet and thus, presents new impacts for the area.   

The Board of Supervisors will have to consider whether the provisions of the Zoning Ordinance for a Special Exception have been met in this application; 1) will the application negatively impact the public health, safety and welfare of residents of Fauquier County; 2) will the proposed use hinder and discourage the appropriate development and use of adjacent land and buildings and impair the value of adjacent land and buildings in violation of Section 5-006 of the Zoning Ordinance; 3) will the proposed use be compatible with existing or planned development in the general area, as set forth in Section 5-006 of the Zoning Ordinance; and 4) will it be compatible with the general area?

Category 20: Section 11-102.2 of the Zoning Ordinance outlines the following standards for this Special Exception:

2.         Personal Wireless Facilities 

These facilities are allowed in all zoning district categories by-right, subject to meeting the performance criteria.  The terms “woodland” and “wooded areas” shall mean growth of deciduous or conifer trees at a minimum density of 80 wooden stems per acre of trees that measure at least four inches in diameter breast high (DBH) or four and one half feet.  The applicant shall file a site plan with supporting documentation adequate to demonstrate that Zoning Ordinance Section 11.102.2.a (location) has been met.

The applicant has provided a tree study to show the vegetation surrounding the tower and compound.  (See Attachment 5 & Attachment 10). 

Section 11.102.2.c  is “design.”  The applicant does not meet the following standard:

·                     Constructed no higher than eighty (80) feet from ground level to the highest part of the personal wireless facility, including all antennas;

This is a reason why a Special Exception is required for this application.  In addition, the County’s consultant, based on the September 11, 2009 Planning Commission site visit and balloon test, recommended that the applicant conduct additional site work to demonstrate the following:

1)      Actual height of the tower;

2)      Actual location of existing wireless carriers on the tower;

3)      Actual location of proposed T-Mobile antenna arrays;

4)      As-built drawings of the tower;

5)      Set-back requirements in relationship to the physical location of the tower;

6)      Tree screening requirements.

On November 16, 2009 and November 24, 2009, the applicant provided a response to the aforementioned list. These are included as Attachment 9 & Attachment 10.  The tower meets the setbacks and tree coverage standards. 

11-102.3.a.   Zoning Application Category

New personal wireless facilities that cannot achieve the standards in Section 11-102.2 shall require special exception approval. 

·               Siting:  A new personal wireless service facility may be a pole that is sited outside of existing trees, or in an area surrounded by less than 100 feet of trees in all directions, if the design is mitigated or camouflaged in such a way to be less visible than if it were in the trees;

See aforementioned comment above.

·               Design:  A new personal wireless service facility may be higher than 80 feet, provided that the omni-directional or dual-polarization antennas are no higher than 10 feet above the average tree top height; or

The Statement of Justification states that the highest antennas will not be higher than 10’ above the average treetop height, given the location on the down slope of a hill and the dense tree vegetation which runs to the top of the hill.  Photos taken during the  second balloon test, conducted on September 11, 2009 and September 12, 2009, by the County’s consultant appear to show otherwise (See Attachment 7).

·               Special Circumstances:  A telecommunication tower facility up to 120 feet in height is permissible upon technical demonstration that environmental and topographical constraints, as well as available technology used, cannot provide acceptable service at a lower height.  Such a facility needs to be designed to accommodate co-location; or with the exception of emergency communication tower facilities, a personal wireless or telecommunication facility proposed in excess of 120 feet in height is an application of last resort.  The applicant/carrier must technically justify that:  (a) all existing structures, site and height alternatives have been exhausted; and (b) the facility proposed is at the minimum height, based on the best available technology, to adjust to the identified environmental and topographical constraints, for the established service carrier, and without the site at the requested height, service cannot be provided.

The existing tower is a stealth monopole with a fabric coating.  If a new antenna array was added it would be subject to the same or similar stealth technology.  In fact, the applicant has provided another option for flush mount antennas on the monopole.  (See Attachment 6).  The applicant’s engineer indicates that the minimum height of 88’ is required to achieve their coverage objective.  However, an antenna at a lower elevation may still provide adequate service, it just may not be equivalent to the applicant’s coverage objective.   

11-102.3.b General Performance Criteria:

All personal wireless or telecommunication facilities, whether permitted by right or permissible with the approval of a special exception or special permit application, shall be subject to the standards set forth in this section. 

·                           New telecommunication facilities greater than 80 feet in height shall be designed to accommodate co-location, complete with the engineering report attesting to that capacity, unless the Applicant is able to certify:

(a)    Doing so would create an unnecessary visual impact on the surrounding area; or

(b)   No additional need is anticipated for any other potential user in the vicinity; or

(c)    There is some valid economic, technological or physical justification as to why co-location is not possible. 

               The applicant shall identify the conditions under which future co-location

               by other service providers is permitted.

The applicant indicates that because they are using an existing tower the project is less impactive than a new tower and also consistent with the Zoning Ordinance.  However, the intent of the Ordinance was to co-locate on towers 80 feet or less in height.  This application does not meet that criterion.

·                                 The height of new towers shall be limited based on technological need, type of          facility location, and/or required permit approval.

 The applicant’s engineer has stated that the 88’ height is the minimum required to achieve their coverage objective. The lower spot available on the tower (48’ spot) will not work because it creates a coverage hole and would require and additional tower to fill that coverage gap.

11-102.3.c.      Additional Submission Requirements: 

In addition to Section 5-011.II, the following additional information is still required to be submitted by applicants for towers or monopoles that require special exception or special permit approval:

·         Photo imagery or other visual simulation of the proposed telecommunication tower or         monopole must be shown with the existing conditions of the site. This simulation shall be provided from a minimum of three (3) perspectives. The applicant shall address how the facility can be designed to mitigate the visual impact on area residents, facilities, and roads.

·         Photographs:  (1) 4 x 6 inch photograph from three perspectives demonstrating existing conditions, one sight line from each residential unit; (2) photosimulation from the same three perspectives with the proposed personal wireless facility included.  If there are no residential units in the project area, then views shall be from the public rights-of-way.

The applicant conducted a balloon test on Friday, August 14, 2009 and Saturday, August 15, 2009 from 9:00 a.m. to 5:00 p.m., per the Fauquier County Balloon Test Policy.  A photo simulation is provided in Attachment 8.

Per the Planning Commission’s request, a second balloon test was conducted on September 11, 2009 and September 12, 2009.  See Attachment 7 for updated balloon test photos taken by the County’s consultant.

Staff and Agency Review Comments:

Staff and appropriate referral agencies have reviewed this request for conformance with the Comprehensive Plan, the Zoning Ordinance, and other relevant policies and regulations. Findings, comments, and recommendations are summarized below. Following each comment is a staff note in italics stating how the comment has been addressed.

Technical Considerations

The County’s telecommunications consultant, Atlantic Technology Consultants, Inc. (ATC) has reviewed this Special Exception request. ATC provided the following summary:

The application represents an appreciable intent on the part of the applicant to conform to the intent of all applicable federal, state and local regulations, accepted industry practices, and specific County ordinances regarding construction of new telecommunications towers.  It is therefore the recommendation of this consultant that the request for issuance of a Special Exception to allow construction of this tower as proposed be considered for approval contingent upon the following:

·         The applicant’s plans do not have grounding specifications.  It is recommended that a grounding plan is required prior to the issuance of a building permit.

In addition to this requested information, since the second balloon test and site visit, the following additional materials are requested:

1)      Actual height of the tower;

2)      Actual location of existing wireless carriers on the tower;

3)      Actual location of proposed T-Mobile antenna arrays;

4)      As-built drawings of the tower;

5)      Set-back requirements in relationship to the physical location of the tower;

6)      Tree screening requirements.

On November 16, 2009 the applicant provided a submittal (Attachment 9) to address the aforementioned list.  On November 24, 2009 a supplemental submittal was provided (Attachment 10).

Zoning Considerations

Revised Zoning comments:

1.   The applicant proposes to install a 10 foot extension to an existing 80 foot monopole (according to the approved site plan), for a total height of 90 feet.  While the application refers to an existing 78 foot tower and a proposed 88 foot tower, these lesser heights are measured to the midpoint of the antenna structure.

The new survey information presented by the applicant shows the existing tower height to be 78 feet.  Thus, the total height with the proposed project would be 88 feet (See Attachment 10).

2.   The existing 80 foot tower on this property was approved by site plan on February 4, 2004.  In October 2005, as construction was being completed, the County issued a stop-work order on the property after determining that construction of the facility was violating the approved site plan because existing trees located within the 100 foot buffer around the tower, which were shown to be preserved on the site plan, had been removed in conjunction with the construction of the driveway to the facility.  To address the violation, the applicant agreed to plant a number of 6-8 inch caliper trees—to be relocated from elsewhere on the property—in the immediate vicinity of the tower to compensate for the lost trees.  The applicant also agreed to apply a camouflage treatment to the tower to further ameliorate the impact of removing the trees.  A site plan amendment incorporating these changes was approved by the County in 2006 and the trees and camouflage treatment were provided as required by the amended site plan, resolving the zoning violation.  Staff would note that the applicant also entered into a private agreement with a neighbor, Mr. George Chester, related to providing additional trees and camouflage.

See comment #1 on new height information.

3.   The following special exception standards are applicable:

a.   5-006 General Standards;

b.   5-2001 Additional Submission Requirements (for Category 20 Uses);

c.   5-2002 Standards for All Category 20 Uses.

Zoning staff defers to planning staff on the assessment of the special exception standards.  In addition to the Special Exception Standards above, the Zoning Ordinance sets forth requirements related to Telecommunications Towers in Article 11.  The Zoning comments include assessment of compliance with requirements found in Article 11.

See Special Exception Analysis section for discussion of these standards.

4.   The facility requires special exception approval because:

a.   the height of the tower exceeds 80 feet and

b.   the facility has not been shown to be surrounded by 100’ of wooded area as defined by the Zoning Ordinance.

5.   A tower over 80 feet in height can only be approved if one of the two following criteria is met:

a.   The top of the antenna is no more than 10 feet above the average tree top height, or

b.   Acceptable service cannot be provided at a lower height (upon technical demonstration based on environmental and technological constraints.)

      It is not clear to staff that either of these criteria has been met.  Although the applicant states in the application that the height of the tower is no more than 10 feet above average tree height, pictures of the existing facility suggest it may be more than 10’ above the trees in the immediate vicinity, and the extended tower is certainly more than 10’ higher than the trees in the immediate vicinity.   As to whether the height proposed is the minimum necessary to provide acceptable service, the only information provided by the applicant is an assessment at 40 feet and 90’ and only at the proposed location.  This data does show that the 90 foot provides additional service that the 40 foot tower does not, but it is unclear whether the 40’ height represents acceptable levels of service or whether acceptable levels of service may be achieved at lesser heights at alternative locations.

The applicant has conducted a tree study to show the vegetation surrounding the tower and compound but it is not clear that the tower extension is no more than 10 feet higher than the trees in the immediate vicinity.  The applicant’s engineer has indicated that the height of 88’ is the minimum required (See Attachment 9).  

6.   A tower that is not surrounded by 100’ of woodland or wooded area can only be approved if the design is mitigated or camouflaged in such a way as to be less visible than if it were in the trees (ZO §11-102.3.a bullet 2).  Note, this requirement for design mitigation or camouflage would apply to the entire tower, not just the newly proposed 10 foot extension. The Ordinance defines woodland  and wooded areas to mean growth of deciduous or conifer trees at a minimum density of 80 wooden stems per acre of trees that measure at least four inches in diameter breast high (DBH) or four and one-half feet (ZO §11-102.2).  The applicant has provided no information regarding the density of the wooded area, and in any case, the violation associated with the initial tower, where trees required to be saved were removed, suggests this condition cannot be met.    The Board of Supervisors must determine whether the proposed camouflage (stealth wrap) is adequate to meet this standard or whether alternative design or camouflage is appropriate.

The applicant has conducted a tree study to show the vegetation surrounding the tower and compound and has included the stealth camouflaging on its proposed addition as well as flush mounted antennas.

7.   The proposal includes provision of additional equipment on site to support the facility.  It is unclear from the application what additional equipment will be provided and where it will be located.  The application form for the special exception states that “3 ancillary equipment cabinets will be placed at the base of the pole within the existing compound.”   The statement of justification submitted with the application states on page 1 that “its equipment cabinets would be installed on a new 7’ x 11’ concrete pad within the existing…compound” and on page 3 that “all ground equipment will be within the existing 75’ x 75’ square foot fenced and secured area.”   The plans themselves appear to show new cabinetry being located on a new 7’ x 11’ concrete pad that is located outside the current fenced area of the enclosure.  The extent of expansion should be clarified.  While the area is quite small, if the enclosure is being extended as shown on the special exception plan, it appears to eliminate two screening trees previously placed on the property as well as a larger tree that was required to be replanted on the site after the previous unauthorized removal of trees.  Staff would recommend that any extension of the enclosure be done in such a way as to avoid removal of any mature trees or trees transplanted in 2006 to address the violation.

If any tree removal is required, the trees would be replaced.  The applicant intends to avoid removal of mature trees or the trees planted in 2006.

8.   Should the permit be recommended for approval, staff would suggest the following additional conditions be included:

a.   Maximum height (to the highest point of any part of the structure, including the antennas) shall be 90 feet.

b.   No signals or lighting shall be allowed on the site.

c.   No commercial advertising shall occur on the site.

d.   The existing access road to the tower site shall be used for all access, including construction.  No changes shall be made to the road. 

e.   No division or boundary line adjustment shall occur which removes a 200’ wooded buffer from the monopole property or which could allow the placement of a residential unit within 300 feet of the antenna.

f.    Major site plan approval is required.

g.   No building permit for the facility shall be approved prior to approval of a grounding plan for the facility.

h.   The owner of the facility shall submit a report to the Zoning Administrator each year by July 1st.  The report shall state the current users of the tower.

i.    Any antenna or tower shall be disassembled and removed from the site within 90 days of the discontinuance of the use of the tower for wireless communications purposes, consistent with Zoning Ordinance.

Should the Board of Supervisors approve this application, the aforementioned conditions can be made a part of the resolution of approval.

Environmental

No comment.

Transportation Considerations


VDOT stated “no comment.”

 

Planning Commission Summary and Action of August 26, 2009:

The Planning Commission discussed this item at its work session.  Per Commissioner McCarty’s request, staff presented the Commissioners with a memo containing a timeline of events for the cell tower (i.e., original site plan approval to the present Special Exception request).   Concerns were voiced from an adjacent neighbor on the visual aesthetic of the tower and proper noticing for the balloon test.  The Commission requested that the applicant fly an additional balloon test.  The applicant agreed and the balloon test was scheduled for September 11, 2009 and September 12, 2009.

A public hearing was held.  The applicant agreed to postpone the next public hearing until September 24, 2009.

Planning Commission Site Visit of September 11, 2009:

The Planning Commission conducted a site visit to the tower.  At the site visit they observed the balloon test, walked around the tower compound and also viewed the tower from the adjacent neighbor’s property.  The County’s consultant, ATC and staff also attended the site visit.

Planning Commission Summary and Action of September 24, 2009:

The Planning Commission discussed this item at its work session.  A public hearing was held.  There was one speaker who stated that the applicant had agreed to submit additional material to the County two weeks prior to the next Planning Commission meeting so that the public would have an opportunity to review it in a timely fashion prior to the next scheduled hearing.  The applicant agreed to postpone the next public hearing and submit the requested additional materials.

Planning Commission Summary and Action of December 9, 2009:

On December 9, 2009, the Planning Commission held a work session and conducted a public hearing on the proposed Special Exception.  Three members of the public spoke in opposition of the project at the hearing; the applicant’s representative provided comments; and, the County’s telecommunications consultant provided comments.

The Planning Commission forwarded a unanimous recommendation of denial to the Board of Supervisors.

Summary and Recommendation:

The applicant has requested a Special Exception because their proposed tower would exceed 80 feet in height.  The applicant’s requested increase in height for the tower can only be approved if general special exception standards are met; the height is no more than 10 feet above the average tree top height (which has not been clearly demonstrated); and, upon technical demonstration that environmental and topographical constraints, as well as available technology used, cannot provide acceptable service at a lower height and the facility accommodates co-location.     

 

Requested Action of the Board of Supervisors:

Conduct a public hearing and consider adoption of the attached resolution

Identify any other Departments, Organizations or Individuals that would be affected by this request:

Customers of T-Mobile

Citizens in the Project Vicinity

 

ATTACHMENTS:

1.         Special Exception Plat

2.         Statement of Justification

3.         Signal Coverage Maps

4.         RF Justification

5.         Tree Survey

6.         T-Mobile Flush Mount Antenna Option

7.         ATC Updated Report – September 15, 2009

8.         Photo simulation – August 1, 2009 and August 15, 2009

9.         November 16, 2009 Submittal

10.     November 24, 2009 Submittal

 

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