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HomeMy WebLinkAboutSP199800027 Action Letter COUNTY OF ALBEMARLE Dept. of Planning & Community Development 401 McIn tire Road Charlottesville, Virginia 22902-4596 (804) 296-5823 September 29, 1998 Larry Ryan CFW Wireless POBox 1328 Waynesboro, VA 22980-0909 RE: SP-98-27 CFW Wireless (Red Hill) Tax Map 87, Parcel 25B Dear Mr.Ryan: The Albemarle County Board of Supervisors, at its meeting on September 16, 1998, adopted the attached resolution denying the SP-98-27. If you have any questions or comments regarding the above-noted action, please do not hesitate to contact me. evelopment VWC/jcf Cc: Amelia McCulley Jack Kelsey RESOLUTION TO DENY SP 98-27 WHEREAS, CFW Wireless (hereinafter "CFW") is licensed by the Federal Communications Commission to provide personal communication service ("PCS") in Albemarle County and is an established provider of such servi.ce in the County; and WHEREAS, CFW filed an application for a special use permit ("SP 98- 27") which would authorize it to erect a wireless telecommunications facility in Albemarle County on that property identified as Tax Map 87, Parcel 258, which is located on the southeast side of Route 29 South approximately one mile southwest of Route 708 (the "property"); and WHEREAS, the property is a 2.071 acre parcel zoned Rural Areas ("RA") and Entrance Corridor; the RA zoning district regulations authorize telecommunications towers and related facilities by special use permit; the Entrance Corridor overlay district regulations impose additional requirements, including design standards and review, upon structures located in the Entrance Corridor; and WHEREAS, if approved, SP 98-27 would have authorized CFW to erect and maintain a 150 foot self-supporting monopole (the "tower") and related facilities to provide PCS service in southern Albemarle County; and WHEREAS, the Planning Commission conducted a duly noticed public hearing on SP 98-27 on July 14, 1998, whereafter it made its recommendation to the Board; and WHEREAS, the Board conducted a duly noticed public hearing on SP 98- 27 on August 19, 1998, at which time oral and written evidence was presented. NOW THEREFORE, BE IT RESOLVED that the Board of Supervisors of Albemarle County, Virginia, hereby denies CFW's application for SP 98-27 for the reasons set forth below: 1. The proposed tower would be inconsistent with the Comprehensive Plan. The property is located in the Rural Areas of the Comprehensive Plan. (Record, 4) The Comprehensive Plan discourages uses not related to bona fide agriculture or forestry in areas designated Rural Areas. (Record, 4) The proposed wireless facilities are commercial in nature. The Open Space Plan, which is part of the Comprehensive Plan, provides guidance for protecting identified resources of the County. (Record, 4) The resource 1 - . - ~ ideotified with this application is the Entrance Corridor. (Record, 4) The proposed tower would be within the Entrance Corridor, only 60 feet from Route 29, and would be highly visible. (Record, 4) The intent of the Entrance Corridor overlay district is, in part: to implement the comprehensive plan goal of protecting the county's natural, scenic and historic, architectural and cultural resources including preservation of natural and scenic resources as the same may serve this purpose; [and] to ensure a quality of development compatible with these resources through architectural control of development. . . (Zoning Ordinance 9 30.6.1) The proposed tower and related facilities would not protect and preserve the goals stated above and are therefore inconsistent with the comprehensive plan. The impact of the proposed tower on the Entrance Corridor is significant due to its size. (Record, 5) The existing public utility poles and towers in the area were constructed prior to the adoption of the Entrance Corridor overlay district in 1990. (Record, 27-28) Therefore, the assertion that the impact is merely incremental to what already exists (Record, 29, 38) is not persuasive. 2. The findings required for the approval of SP 98-27 cannot be made. a. The proposed tower will be a substantial detriment to adjacent property . The proposed tower is located approximately 1,000 feet from the nearest dwelling. (Record, 5) Because of the design and height of the proposed tower, the location of all of the wireless facilities in an open area, the proposed tower and related facilities would be highly visible from adjacent dwellings and Route 29. (Record, 5) One of the adjacent property owners objected to the placement of the proposed tower in the Entrance Corridor, and suggested that CFW find a less obtrusive site. (Record, 31) He and other citizens stated that the proposed tower would adversely affect the value of adjacent properties. (Record, 27) b. which is rural. The proposed tower will change the character of the district, The location of the proposed tower is approximately 80 feet north of American Electric Power's 230 kilovolt transmission line and 100 feet north of Virginia Power's 500 kilovolt transmission line. (Record, 3) The proposed tower would be 30 feet taller thfln the highest public utility structure in the immediate vicinity. (Record, 3) 2 Seventeen houses are located within 2,000 feet of the proposed tower. (Record, 4) There are no existing wireless telecommunications facilities in the Red Hill area. (Record, 4) Although the area is not a pristine viewshed, the tower proposed at a height of 150 foot, or even at a height of 120 feet, alters the character of the Entrance Corridor overlay district. (Record, 1, 6) Despite the existing public utility facilities, one citizen described the Red Hill area as one that "is a very beautiful area which should be preserved" and urged that wireless facilities "be located so that the character of the community which the Comprehensive Plan is trying to preserve is maintained." (Record, 31) Citizens also stated that the size, location and visibility of the proposed tower would alter the character of the district, and requested that CFW consider alternative locations and strategies. (Record, 31) One citizen stated that the proposed tower would "be just another eyesore that residents must live with." (Record, 31) Another citizen stated the impact on the overall community would also be great because a small lake near the property is used as a community gathering site and there is no screening between the lake and the proposed tower location. (Record, 27) A representative of United States Cellulaf asserted that the "viewshed on Route 29 is already degraded by the presence of the utility towers" and that the proposed tower "would have minimal impact on a site where utility towers already disrupt the view." (Record, 37) The representative went on to state: Placing towers on developed land ensures that development is compatible with, and protective of, the scenic resources. Locating a tower to serve Route 29 at anothef location in the same area would create a much greater disruption to the viewshed and to the scenic and natural resources. (Record, 37) This argument is rejected because: (1) it ignores the special attention given by the County to any development in the Entrance Corridor; thus, even though the existing public utility facilities on and near the property predate the Entrance Corridor overlay district, their existence does not diminish the scrutiny that new development in the overlay district requires and deserves; and (2) it incorrectly assumes that the denial of the proposed tower means that the viewshed in another area of the county will be disrupted by the wireless facility constructed in its place; there is no evidence that a wireless facility must be constructed in such a way so as to disrupt any viewshed; CFW has demonstrated in the recent past that it can develop its wireless infrastructure in a way with little or no disruption of a viewshed. The representative also stated that locating the proposed tower on the property would preserve agricultural and forestal land by developing land that is already being used fOf utility infrastructure. (Record, 38-39) This argument incorrectly assumes 3 that.agricultural or forestal land will be sacrificed for the wireless facility constructed in its place. At the Planning Commission hearing, approximately fifteen people rose to show their opposition to SP 98-27, and citizens submitted a petition signed by almost 100 persons stating their opposition to SP 98-27. (Record, 31,40-45) c. The proposed tower and related facilities are inconsistent with sections 1.4.3 and 1.6 of the Zoning Ordinance. The proposed tower and related facilities may facilitate providing improved wireless communication service, which would be consistent with the purpose set forth in section 1.4.4 of the Zoning Ordinance. However, the proposed tower and related facilities are inconsistent with sections 1.4.3 and 1.6 of the Zoning Ordinance. Section 1.4.3 states that one intent of the Zoning Ordinance is "To facilitate the creation of a convenient, attractive and harmonious community." Section 1.6 states in part that: "development is not to be encouraged in the Rural Areas which are to be devoted to preservation of agricultural and forestal lands and activities, water supply protection, and conservation of natural, scenic and historical resources." The project, particularly the tower, does not contribute to an attractive community because of the proposed tower's visual impact on the Entrance Corridor and the surrounding area. (Record, 6) A representative of United States Cellular questioned why section 1 .4.3's stated intent to create an attractive community should prevail over other provisions of section 1.4 of the Zoning Ordinance. Creating an attractive community is controlling in this case because the property is located in the Entrance Corridor overlay district. The denial of SP 98-27 does not prevent the service and economic goals of the Zoning Ordinance from being achieved; they are simply outweighed in this case by the other stated considerations For all of the above reasons, and the reasons stated elsewhere in this decision, the proposed tower and the related facilities are inconsistent with sections 1.4.3 and 1.6 of the Zoning Ordinance. 3. The applicable provisions of the Telecommunications Act of 1996 have been considered, and the denial of SP 98-27 is in compliance with the requirements of the Act a. Neither the Comprehensive Plan nor the Zoning Ordinance unreasonably discriminates against providers of functionally equivalent wireless telecommunications services. 4 The final report of the wireless telecommunications task force concluded that cellular service and PCS are functionally equivalent. The Zoning Ordinance does not discriminate between the two wireless telecommunications services. See, for example, section 10.2.2.6 of the Zoning Ordinance, which authorizes, among other uses in the RA zoning district, "unmanned telephone exchange centers; micro-wave and radio-wave transmission and relay towers, substations and appurtenances." This language, which appears in the regulations for other zoning districts also, has been construed to include the facilities for both cellular service and PCS. Neither the decision of the Planning Commission, the staff report, nor the evidence presented by citizens indicated an intent to favor another wireless service provider over CFW. Rather, the staff report was based upon an analysis of the proposed project's consistency with the Comprehensive Plan and its compliance with the requirements of section 31.2.4.1 of the Zoning Ordinance. The concerns of citizens rested on traditional land use concerns, including the proposed tower's size, the visual impacts of the proposed tower and related facilities, and the impact the proposed tower and related facilities would have on adjacent properties and the district. (Record, 23. 26,27,30,31,34) b. Neither the Comprehensive Plan, the Zoning Ordinance, nor any other regulation or policy of the County prohibits or has the effect of prohibiting the provision .of wireless telecommunications service in Albemarle County. Neither the Comprehensive Plan, the Zoning Ordinance, nor any other regulation or policy of the County establishes a ban or policy that has the effect of prohibiting wireless telecommunications service in Albemarle County. A wireless service provider is required to obtain a special use permit for the construction and use of wireless telecommunications facilities. Applications for special use permits are decided on a case-by-case basis, and in reviewing such applications, the Board considers the applicable provisions of the Comprehensive Plan and the factors relevant to the approval of a special use permit set forth in section 31.2.4.1 of the Zoning Ordinance. Since 1990, the Board has approved 18 applications for special use permits for wireless telecommunications facilities, and denied 4 (other than this application and the application for SP 98-03, the decision on which is pending). (Record, 49-50) There was no evidence presented at either of the public hearings that denial of SP 98-27 would have the effect of prohibiting the provision of wireless telecommunications services in Albemarle County. CFW did not consider alternative locations (Record, 24), did not modify its application to reduce the height of the proposed tower to reduce the visual impacts (Record, 1), and did not consider utilizing a 5 . wooden pole with a whip antenna, as it has for several other approved special use permits. c. CFW's application for SP 98-27 was acted upon within a reasonable period of time. The application for SP 98-27 was submitted on May 18, 1998. The public hearing before the Planning Commission was held on July 14, 1998, within the ninety day period provided by section 31.2.4.2 of the Zoning Ordinance. The Board's decision on SP 98-27 is well within the twelve month period to act on the application, as provided in section 15.2-2286(7) of the Code of Virginia. d. The decision to deny SP 98-27 was not based on health or environmental effects. The staff report states: "In order to operate this facility the applicant is required to meet the FCC guidelines for radio frequency emissions." This requirement would have adequately protected the public health and safety. (Record, 7) 4. There is an existing reasonable use of the property. The property is currently used as a substation by American Electric Power. (Record, 3) BE IT FURTHER RESOLVED that this decision is based on the written record of the proceedings of CFW's application for SP 98-27, which record is identified as the "Record of the Proceedings of the Application of CFW Wireless for a Special Use Permit for a Wireless Telecommunications Facility" which is on file in the office of the Clerk of the Board of Supervisors. f 6 I, Ella W. Carey, do hereby certify that the foregoing writing is a true, correct copy of a Resolution duly adopted by the Board of Supervisors of Albemarle County by vote of _ to _ , as recorded below, at a regular meeting held on September 16, 1998. Clerk, Board of County Supervisors Aye Nay Mr. Marshall Mr. Bowerman Mr. Perkins Ms. Humphris Mr. Martin Ms. Thomas 7