HomeMy WebLinkAboutZTA201500008 Staff Report 2015-07-08Bill Fritz
From: Greg Kamptner
Sent: Tuesday, June 02, 2015 4:31 PM
To: Bill Fritz; Sarah Baldwin
Subject: FW: ZTAs to Wireless Ordinance
Greg Kamptner
Deputy County Attorney
County of Albemarle
ekamotner(@albemarle.ore
(434) 972 -4067
From: Karen Firehock
Sent: Tuesday, June 02, 2015 3:17 PM
To: Planning Commission .
Subject: FW: ZTAs to Wireless Ordinance
i
I suggested that Ms. Greenson send this to everyone but I don't know if she has -- so here this is. I just got it.
Best, Karen
Karen Firehock, Planning Commissioner
Samuel Miller District
Albemarle County, VA
mobile: 434- 249 -2492
From: Jennifer Greeson Dennifer.rae.greeson @gmail.com]
Sent: Tuesday, June 02, 2015 2:17 PM
To: Karen Firehock
Subject: Re: ZTAs to Wireless Ordinance
Dear Karen,
Thanks so much for your message, and apologies for my slow reply - -I have been teaching a long summer
seminar today.
Would you have a moment to connect by telephone? I have a feeling it might be more useful for us to be able
to have a conversation with more back - and -forth than on e- mail. If you are amenable to a call, is the 249 -
number on the County website correct for you?
In case I can't reach you:
Ishort, changing the material of a pole from wood to metal is an instrumental change that enables geometric
intensification of the use of a site.
* Most important, vastly more transmission equipment, at much broader projections, can be supported by a
metal pole rather than a wooden one.
* Under the current Ordinance, the breadth of the pole in a pole replacement can by -right be expanded to the
maximum allowed girth for a monopole - -a very large increase in girth for most of these wooden poles- -
providing still more support for more obtrusive and powerful equipment.
* Staff will say right now that the height of the pole will not be able to be changed, but that is far from a "done
deal," as this new Ordinance will face myriad challenges from industry - -and a metal pole structurally can be
expanded in height in the future in ways that a wooden pole cannot.
(As an illustration: One of the towers next to our backyard in Bellair is essentially a narrow telephone pole with
a single flush - mounted array attached to it and no room or structural support for anything else - -can you imagine
how a pole replacement to a metal tower of the maximum allowable girth would transform the intensity of that
tower site, even with no height increase ?)
I think it is imperative for the County to retain its powers of evaluation and approval for such requests for major
expansion of existing towers. If this amendment was a "do- nothing" change that would make no difference in
future expansions of existing towers, I do not believe that the lawyer for AT &T and nTelos (the operator of the
two towers in Bellair) would have stated her formal opposition to this ZTA and would be planning to argue
against it tonight.
Again, I'd be very happy to speak on the phone briefly if you are available.
With thanks for your consideration,
Jennifer
On Tuesday, June 2, 2015, Karen Firehock <kfirehock@albemarle.org> wrote:
Hi Jennifer and'thanks for taking the trouble to send all of this. I have read your letter and all seems to make sense but
I have one question which I am putting back to you and to our PC attorney so that he can tell everyone the answer this
evening.
If a cellular company comes before the PC to request we change an existing wood pole to a metal pole, we would only
say yes or no to a material choice. We not be able to rule on anything else. It seems that the public wants to have more
discretion over existing poles - but I don't believe we would then be able to do a host of other unrelated actions such as
change the height, dimensions, location etc. So what would this, material review get us, beyond a lot of frustrated
people. asking us why we don't get rid of the pole or move it? That is the question I have for you and Greg. If Greg
does not reply by email before tonight I will let you know what he says .
Thank you.
Best, Karen
Karen Firehock, Planning Commissioner
Samuel Miller District
Albemarle County, VA
mobile: 434 - 249 -2492
From: Jennifer Greeson Dennifer.rae.greeson @gmail.com]
Sent: Monday, June 01, 2015 9:32 PM
To: Karen Firehock; Liz Palmer; dadev comcast.net; Maynard Sipe
Subject: ZTAs to Wireless Ordinance
Dear Karen,
Liz Palmer has been so kind to work with my husband and me, and on behalf of many of our neighbors in
Bellair, and concerned citizens in other County subdivisions, on two of the Wireless ZTAs that come before
the PC for public hearing tomorrow evening. I am attaching a document that attempts to lay out some of the
thinking -- contributed to and vetted by Maynard Sipe, a local land -use lawyer with extensive experience in both
the wireless industry and AC code -- behind these amendments.
Unfortunately Staff do not support either of these amendments in their official recommendations, though they
offer no clear alternative paths to deal with the weaknesses in the current Ordinance we have
identified. Wireless industry lawyers for AT &T will also be on hand to oppose these amendments. The
discussion may be contentious and as members of the public, we will have only two or three minutes to
address the Commission at the hearing, so we are sending this additional material in advance.
With many thanks for your patience, time, and service,
Jennifer Greeson and Dade Van Der Werf
Bill Fritz
From:
Karen Firehock
Sent:
Tuesday, June 02, 2015 9:47 AM
To:
Greg Kamptner
Subject:
FW: ZTAs to Wireless Ordinance
Attachments:
Wireless_ZTA letter Jun01.pdf
I am going to request a comment from you on this -- see my email in a minute...
Karen Firehock, Planning Commissioner
Samuel Miller District
Albemarle County, VA
mobile: 434 - 249 -2492
From: Jennifer Greeson Dennifer.rae.greeson @gmail.com]
Sent: Monday, June 01, 2015 9:32 PM
To: Karen Firehock; Liz Palmer; dadev @comcast.net; Maynard Sipe
Subject: ZTAs to Wireless Ordinance
Dear Karen,
Liz Palmer has been so kind to work with my husband and me, and on behalf of many of our neighbors in
Bellair, and concerned citizens in other County subdivisions, on two of the Wireless ZTAs that come before the
PC for public hearing tomorrow evening. I am attaching a document that attempts to lay out some of the
thinking -- contributed to and vetted by Maynard Sipe, a local land -use lawyer with extensive experience in both
the wireless industry and AC code -- behind these amendments.
Unfortunately Staff do not support either of these amendments in their official recommendations, though they
offer no clear alternative paths to deal with the weaknesses in the current Ordinance we have
identified. Wireless industry lawyers for AT &T will also be on hand to oppose these amendments. The
discussion may be contentious and as members of the public, we will have only two or three minutes to address
the Commission at the hearing, so we are sending this additional material in advance.
With many thanks for your patience, time, and service,
Jennifer Greeson and Dade Van Der Werf
June 1, 2015
Dear Karen Firehock,
We write to encourage you and your fellow Commissioners to vote in favor of the
ZTA 2015 -00007 Wireless on Public Notice, and the ZTA 2015 -00008 Wireless on
Replacement of Wooden Poles.
We further encourage you to expand the scope of ZTA 2015 -00008 to apply to
more than a very few wooden poles (probably fewer than five) currently extant in
the County.
These two amendments have been spurred by community involvement, including
input from land use lawyers, with the objective of maintaining some County
control over future development of existing tower sites throughout Albemarle, in
the face of sweeping FCC usurpation of local authority on these matters. Both
amendments were requested by the Board of Supervisors.
It is unfortunate that of three wireless ZTAs before you on June 2, Staff support
only the one generated by the wireless industry, while they decline to support
the ones generated by citizen involvement and BoS direction.
We append some rationales for these three requests below:
1) to vote in favor of the ZTA 2015 -00007 on Public Notice;
2) to vote in favor of the ZTA 2015 -00008 on Replacement of wooden poles;
3) to expand ZTA 2015 -00008 to retain the County's right to require ministerial
approval of any applications for future replacement of existing wood poles.
Sincerely yours,
Dade Van Der Werf and Jennifer Greeson
16 Deer Path
1. Please vote in favor of the ZTA 2015 -00007 on Public Notice, to require
notice to abutting property owners in ALL cases of application for wireless
facility changes, including collocations and replacements ( "C /R" applications).
This amendment was requested by the Board of Supervisors.
Rationale:
• Notice of all potentially disruptive and intrusive work on neighboring tower
sites is a matter of courtesy to County residents. (The residents of Bellair can
attest that work on existing towers, which is generally performed by out -of -state
subcontractors who do not identify themselves as related to any wireless
company, is presently pursued in surprisingly discourteous and disruptive fashion
in residential neighborhoods.)
The FCC Order sets a 60 -day clock on all applications for approvals of tower
expansions. Requiring industry notice to abutting property owners at the time of
application involves additional interested parties to ensure that timely action is
taken.
• The new Wireless Ordinance places more actions exclusively in the hands of
County Staff. Yet definitions of concealment, visual impact, and substantial
changes are in flux. These definitions also rely at least to some extent upon
subjective, judgments. The public should not be shut out of this evolving process,
particularly those County property owners most directly impacted by each
application. (Again, the residents of Bellair can attest that improper action was
taken by Staff on an application to intensify use of a tower in our neighborhood —
even before the FCC order came into effect —with detrimental effect to the
surrounding property owners. Public notice makes possible an additional level of
oversight on such changes.)s
2. Please vote in favor of the ZTA 2015 -00008 on Replacement of Wooden
Poles, to require that any application to replace an existing wooden pole tower
with a metal pole be treated as a special exception —in the case that the tower
violates the fall zone setback customary for all tower structures throughout
Virginia, without an easement permitting the fall zone encroachment onto the
abutting property. This amendment was requested by the Board of
Supervisors.
Rationale:
• The County should preserve rather than cede its legislative authority over
previously- approved towers in its own Ordinance. The FCC Order takes away
County authority on most matters of collocation and other forms of expansion for
previously- approved towers. However, tower pole replacement is expressly NOT
required by the FCC Order —it is left entirely to the discretion of the locality. (FCC
Order 14 -153 Section S -- Paragraph 180.)
• The situation addressed by this amendment is extremely rare and narrow.
Staff assert in their presentation that "approximately three dozen" sites are
"potentially affected" by this amendment, but this is a disingenuous claim. The
"three dozen" is a generous estimate of the total number of wood pole towers
that may possibly exist in the County today. Surely the majority of these are in
rural districts, where the customary fall zone setback is not at issue. This
amendment addresses only those towers that were allowed, via a Planning
Commission "waiver" of setback (which action is no longer legal in Virginia), to
violate customary state zoning setbacks for tower structures. Those setbacks are
customary for matters of safety and public welfare.
• This amendment prohibits nothing to the wireless industry. It does not remove
any previously- approved tower site; and it does not prohibit an expansion of an
existing site. It simply requires that any application for a replacement of the
entire tower structure, and only in this rare situation where an abutting lot is
encroached upon without the owner's permission, be subjected to review as a
special exception, rather than being allowed by -right with no review —as is the
present case in the ordinance.
3) Please expand ZTA 2015 -00008 to retain the County's right to require
ministerial approval of any applications for future replacement of existing
wood poles. (See attachment below for proposed Ordinance change.)
Rationale:
Tower pole replacement is expressly left to the discretion of the locality in the
FCC Order. It is a weakness of the new Albemarle Wireless policy that wooden
poles —and wooden poles alone —are allowed to be replaced with metal
structures by right. This is Albemarle's voluntary cession of a right to regulate
extant towers that is expressly reserved to us by the FCC.
• It is particularly problematic for the County Ordinance to make wooden pole
replacements by- right. Generally wooden pole towers were approved early in
the days of wireless policy, via Special Use Permit and prior to uniform design
standards. The Planning Commission and the BoS imposed strict prohibitions on
any future developments of these wooden pole towers. That assumption of
continued legislative authority on the part of the PC and BoS has been usurped
by the FCC order.
This expanded amendment would simply have all wooden pole replacements
(beyond those not meeting the setback /easement requirement already
addressed) be treated as a "Tier II" application rather than a "Tier I." Thus they
would go back through the Tier II administrative review which does require that
they be sited to minimize visibility (see 5.1.40(b)6).
• A pole that made it through PC review in 2000 or so, subject to SPU conditions,
might no longer meet the current Tier II criteria to minimize visibility (due to
changes in circumstances such as development, change in available tree
screening, etc). Even if in nine out of ten cases the replacement is approved, the
County should reserve its rightful authority to confirm that any new tower
structure would meet the County's current design criteria.
• As Staff explains in the current ZTA 2015 -00008 document, there are at most
36 wooden pole towers in the entire County, and there have only been two pole
replacements thus far in the entire history of wireless industry in the County.
Thus reviewing occasional Tier II applications —one every several years? —for
wooden pole replacements will not make onerous demands upon Staff time.
Attachment: Proposed Ordinance change:
L 1 azz A tti C as R ""r.t � �s €fit Pt tvt asc Draft: 05118/15
The.following abbreviations are used in this table:.
6
Typeof ARplicatipn
Develop ment Requirements
11h
VR
any resources specifically identified for protection in the deed of easement.
7. Open space plan resources. The facility shall novadversely impact resources identified in
Ix
X
the natural resources chapter ofthe county's comprehetsive:plan trid the parks and -green
systems chapters.in any county master plan.
8. Horizontal separation oftnultiple facilities. The facility shall not be located.so thatii
and three.(3) or more existing or approved personal wireless service facilities would be
within an area comprised of a circle centered anywhere on the ground having a radius of
two hundred (200) feet.
.9. Olameterotmonopole. The maximum base diameter :of the monopoleshal be thirty
X
(30) inches and the maximum diameter at the top ofthe monopoleshali be eighteen ('18)
inches.
I0. Height.ofmonopole—The top ofthe monopole, measured in elevation above nlean:sea
X.
level, shall not be more. than ten (10) feet taller than the tallest tree within twenty -five
(25) feet of the monopole, and shall includeany:base, foundation or grading that raises
themonopole:above the pre - existing natural ground elevation.
I]. Color ofmonapole, antennas, and equipment: Each monopole shall be a dark brown
X
: X
natural or painted wood color that blends into the surrounding trees: The antennas;
supporting brackets, and all other equipment attached to the monopole shall be a color
that closely matches that of the monopole. The.ground equipment, the ground
equipment shelter; and the concretepad shall:also bea color thatclosely matches that
of the monopole, provided that the ground equipment and:the:concrete pad need not
closely match: the. colorof the monopole if they are enclosed within a ground
equipment shelter or within.orbehind:an approved structure, fagade or fencingihat: (i)
is a.color that closelymatches that ofthe monopole; (ii) is consistent with the character
of the area; and (ii) makes the.ground equipment, ground equipment shelter, and the
concrete pad invisible at any time of year from any other parcel or a:public or, private
street.
12. Placement of cables, wiring, and similar attachments Each wood or concrete
X
monopole shall be constructed so that all cables, wiring, andsimilar attachments that
run vertically from the ground equipment to the antennas are placed on the monopole
to face the.interior ofthe site and away from public view; as determined by the agent.
Metal monopoles shall beconstructed so that:vertical cables, wiring and similar
attachments are contained within the monopoles structure.
13. Special use.perntitcondflions. All conditions of approval of a special use permit.
X
14. No substantial change. The collocation or replacement shall :not result in a substantial
X
change to the physical dimensions of an eligible support structure.
15. & kctement of wooden monodo% wlth171El monnun /e The replacentent oP lwonden
y��pgnole.with a metal mpnitpole .
(a) Thu monough. is , ck farther in distance 1h 'ts I)rig a tom lot line, mia
}k
.
I,p fed glgs r in distance thap.:jts_lleiuhIS99ay 1Q[ liand the document
aushorized bv..secl j,�ty 5 ] �(p)(�� PX
(b) The monopole is located closor in distance than Ita height la anv lnt line and thu
sixi ,eat authorized by sec jon S.1.40(cl(3l d9.eS.AUt_eY15L
The.following abbreviations are used in this table:.
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