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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.”
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