HomeMy WebLinkAboutZTA201300001 Correspondence 2008-04-17 COUNTY OF ALBEMARLE
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MEMORANDUM
TO: Albemarle County Planning Commission
FROM: Greg Kamptner,Deputy County Attorney
DATE: April 17, 2008
RE: Wireless telecommunications; the Telecommunications Act of 1996 and related laws
This memorandum provides an updated and revised summary of the law regarding personal wireless
service facilities. The summary of the law included as Attachment C(page 25) in your Wireless worksession
staff report is excerpted from our office's 2001 Land Use Law Handbook.
1. Introduction
In the Telecommunication Act of 1996,Congress"struck a balance between the national interest in
facilitating the growth of telecommunications and the local interest in making zoning decisions"over the siting
of towers and other facilities that provide wireless services. 360 Communications v. Board of Supervisors of
Albemarle County, 211 F.3d 79 (4"'Cir.2000). While expressly preserving local zoning authority(47 U.S.C. §
332(c)(7)(A)),the Act requires that decisions denying wireless facilities be in writing and supported by
substantial evidence(47 U.S.C. §332(c)(7)(B)(iii)). The Act also prohibits localities from adopting regulations
that prohibit or have the effect of prohibiting wireless services,or unreasonably discriminate against
functionally equivalent providers. 47 U.S.C. §332(c)(7)(B)(i). The only complete preemption contained in 47
U.S.C. § 332(c)(7)(B)is found in subparagraph(iv), which preempts localities from regulating the placement,
construction, and modification of wireless facilities on the basis of the environmental effects of radio frequency
emissions if those facilities comply with the Federal Communications Commission's regulations concerning
emissions.
Because section 332(c)(7)does not affect or encroach upon the substantive standards to be applied
under established principles of state and local law, Cellular Telephone Company v. Town of Oyster Bay, 166
F.3d 490(2d Cir. 1999), a locality retains its authority to:
• Determine the appropriate height, location and bulk of wireless facilities. Virginia Code§15.2-2280(2).
• Allow wireless facilities,by special use permit, subject to suitable regulations and safeguards. Virginia
Code§15.2-2286(A)(3).
• Deny applications for special use permits if the requisite findings for the granting of a permit cannot be
made.See, e.g., County of Lancaster v. Cowardin, 239 Va. 522 (1990).
• Deny applications for special use permits if the proposed uses are inconsistent with the comprehensive
plan.National Memorial Park, Inc. v. Board of Zoning Appeals of Fairfax County, 232 Va. 89(1986).
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• Prohibit uses, including wireless facilities,within certain zoning districts.Resource Conservation
Management, Inc. v. Board of Supervisors of Prince William County,238 Va. 15 (1989).
Of course,the exercise of this authority must otherwise comply with state and local land use laws, and
may not violate the limitations set forth in section 332(c)(7)(B). Moreover, section 332(c)(7)(A)'s preservation
of local zoning authority does "not alter the FCC's general authority over radio telecommunications granted by
earlier communications legislation."Southwestern Bell Wireless, Inc. v. Johnson County Board of County
Commissioners, 199 F.3d 1185 (10`h Cir. 1999)(rejecting the assertion that preserving local zoning authority
allows local regulation of radio frequency interference, and holding that such regulation is preempted by federal
law and does not violate the Tenth Amendment).
2. The decision must be in writing
The requirement that a decision be in writing is easily satisfied. A letter stamped with the word
"Denied,"or writing the letter"Denied"on the wireless provider's application, satisfies the requirement.AT&T
Wireless PCS, Inc. v. City Council of City of Virginia Beach, 155 F.3d 423 (4th Cir. 1998);AT&T Wireless PCS,
Inc. v. Winston-Salem Zoning Board of Adjustment, 172 F.3d 307(4th Cir. 1999). There is no need for a locality
to issue a written rationale with factual and legal conclusions. Virginia Beach, supra; Winston-Salem Zoning
Board of Adjustment, supra; Cellco Partnership v. Board of Supervisors of Roanoke County, 2004 U.S. Dist.
LEXIS 27348 (W.D. Va. 2004)(explanation for denial is not required; board's adoption of resolution denying
special use permit and sending applicant a rejection letter satisfied the Act).
If a locality elects to adopt a more formal written opinion to support its decision, it need not be adopted
at the time of the decision. Winston-Salem Zoning Board of Adjustment,supra(rejecting any assertion that such
a practice is pretextual).
3. The decision must be supported by substantial evidence
The United States Supreme Court has defined"substantial evidence"to mean"such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion." Universal Camera v. NLRB. 340 U.S. 474
(1951). It requires more than a mere scintilla but less than a preponderance. 360 Communications v. Board of
Supervisors of Albemarle County,211 F.3d 79 (4`h Cir. 2000). In reviewing the decision of an elected body,the
courts will consider the"reasonable mind"to be that of a reasonable legislator.AT&T Wireless PCS, Inc. v. City
Council of City of Virginia Beach, 155 F.3d 423 (4th Cir. 1998). The courts will not substitute their judgment for
the governing body's but will uphold the decision if it has"substantial support in the record as a whole."Id.
The court's inquiry is to ask whether a reasonable legislator would accept the evidence in the record as adequate
to support the governing body's decision. USCOC of Va. RSA #3, Inc. v. Montgomery County Board of
Supervisors, 343 F.3d 262(4th Cir. 2003).
Following is a list of some of the facts found by the courts in the Fourth Circuit(the federal appeals
court and the trial courts for the circuit that includes Virginia)to be substantial evidence under the Act:
• Facility's consistency with the comprehensive plan: The governing body may consider whether the
proposed facility is consistent with the comprehensive plan. In Montgomery County,the location and
design of the applicant's 240-foot tower did not conform to the comprehensive plan or the regional
approach for wireless facilities. In Albemarle County,the applicant proposed to construct a 100-foot
tower on a mountain top,and the county's comprehensive plan and open space plan discouraged the
construction of structures that would modify ridge lines and would contribute to erosion in mountainous
areas. See also, Crown Castle Atlantic, LLC v. The Board of Supervisors of Loudoun County,2002 U.S.
Dist. LEXIS 22000(E.D.Va. 2002)(documented concerns about the proposed height and design of the
tower and the evidence that the tower could be shorter and still achieve similar functional results, as
well as the location of the proposed tower, adequately supported the board's finding that the application
did not substantially conform to the comprehensive plan).
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• Facility's compliance with applicable zoning regulations: The governing body may consider whether the
proposed facility complies with applicable zoning regulations. In Albemarle County,the proposed
tower violated the zoning ordinance's limitations on a structure's proximity to neighboring lots. The
court found that, although the tower's noncompliance with the zoning regulations was not the only
evidence presented to justify the denial of the application, it was a significant factor in the court's
substantial evidence analysis. In Montgomery County,the court held that the proposed facility's
noncompliance with the county's zoning regulations was, in and of itself, substantial evidence.
• Height of the facility: The governing body may consider the height of a proposed facility.Montgomery
County, supra(rejecting the argument that the board's decision was impermissibly based solely on
aesthetic considerations in violation of Virginia law under Board of Supervisors of James City County v.
Rowe,216 Va. 128 (1975)since Virginia localities are enabled to regulate the size,height and bulk of
structures under Virginia Code§ 15.2-2280(2)).
• Design of the facility: The governing body may consider whether the design of a proposed facility is
proper,to the extent the design implicates the structure's size and bulk.Montgomery County, supra(the
board could property consider the adverse impacts arising from the applicant's more visually intrusive
lattice design).
• Location of the facility: The governing body may consider the location of the facility on the lot, since
Virginia law expressly enables a locality to regulate the location of structures under Virginia Code 5C
15.2-2280(2). See, Montgomery County, supra.
• Impacts of the facility on surrounding neighborhood: The governing body may consider the impacts of
the facility on the surrounding neighborhood.AT&T Wireless PCS, Inc. v. Winston-Salem Zoning Board
of Adjustment, 172 F.3d 307(4th Cir. 1999)(board considered visual impacts of tower on surrounding
neighborhood); Cellco Partnership v. Board of Supervisors of Roanoke County,2004 U.S. Dist. LEXIS
27348(W.D.Va. 2004)(concerns regarding property values, aesthetics, and fit within the surrounding
community are objectively reasonable and constitute substantial evidence supporting the board's
decision).
These factors may be presented to the governing body in a number of ways, ranging from the testimony
of members of the public,to staff reports,to the decision-makers' personal knowledge. Widespread public
opposition to the construction of a telecommunications tower also may provide substantial evidence to support a
local government's denial of a permit.See, Virginia Beach, supra;Petersburg Cellular Partnership v. Board of
Supervisors of Nottoway County, 205 F.3d 688 (4th Cir. 2000)(noting that public opposition, if based upon
rational concerns,provides substantial evidence to deny a permit);Albemarle County, supra(determining that
public opposition was a factor that contributed to a finding of substantial evidence); Winston-Salem, supra
(same). However,public opinion does not mandate a particular local zoning decision under the Act.
Montgomery County, supra.
The governing body's known experience also may be a source of substantial evidence.Nottoway
County, supra;Roanoke County, supra("known experiences"would allow the board to reasonably conclude
that the tower would have an adverse impact on residential property values and would not be aesthetically
pleasing).
Neither the governing body nor the public is obligated to call, at its expense, experts to opine about the
adverse impacts arising from a proposed wireless facility when its effects are reasonably apparent to non-
experts.See, Virginia Beach, supra("In all cases of this sort,those seeking to build will come armed with
exhibits,experts, and evaluations. Appellees, by urging us to hold that such a predictable barrage mandates that
local governments approve applications,effectively demand that we interpret the Act so as always to thwart
average,non-expert citizens . . .").
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3. A locality's regulations or decisions may not prohibit or have the effect of prohibiting wireless
service
Section 332(c)(7)(B)(i)(II)forbids regulations that prohibit or have the effect of prohibiting the
provision of personal wireless services:
The regulation of the placement, construction, and modification of personal wireless service
facilities by any State or local government or instrumentality thereof. . . shall not prohibit or
have the effect of prohibiting the provision of personal wireless services.
As a general rule,the prohibition clause applies only to blanket prohibitions or general bans or policies,
rather than individual zoning decisions.AT&T Wireless PCS, Inc. v. City Council of City of Virginia Beach, 155
F.3d 423 (4th Cir. 1998). If the rule was otherwise, local zoning authority would be effectively nullified by
mandating approval of all,or nearly all,applications. Virginia Beach, supra. However, a wireless service
provider may show that the locality has adopted"[p]olicies that do not explicitly ban new service but do, when
applied on a case-by-case basis,guarantee the rejection of every application." Virginia Beach, supra. This
ground provides protection for wireless providers who are unable to enter a new market, but are unable to show
unreasonable discrimination by a locality.Id.
To establish that the denial of an application constitutes an effective prohibition,the wireless service
provider must show a significant gap in wireless coverage and, in the case of a single application denial,that
further application efforts are likely to be fruitless. 360 Communications Co. v. Board of Supervisors of
Albemarle County, 211 F.3d 79(4`h Cir.2000). A wireless provider bears a heavy burden of proof to establish
that the locality's regulation or decision has the effect of prohibiting service.Albemarle County, supra.
The simple fact of denial with respect to a particular site is not enough to establish a prohibition of
wireless service.Albemarle County, supra. "[T]here must be something more,taken from the circumstances of
the particular application or from the procedure for processing that application,that produces the `effect' of
prohibiting wireless services."Albemarle County, supra. The wireless provider might show that the locality has
indicated that repeated individual applications will be denied because of a generalized hostility to wireless
services.Albemarle County, supra. The courts have recognized the"theoretical possibility that the denial of an
individual permit could amount to a prohibition of service if the service could only be provided from a particular
site,"but noting"that such a scenario `seems unlikely in the real world."'Albemarle County, supra. Whatever
those circumstances may be,the prohibition clause does not divest the locality of its discretion,under its site-
specific review,to determine whether certain uses are detrimental to a zoning area.AT&T Wireless PCS, Inc. v.
Winston-Salem Zoning Board of Adjustment, 172 F.3d 307(46 Cir. 1999)(denial of tower in residential area on
lot on which historic building located supported by substantial evidence).
In Montgomery County, the board denied the 240-foot tower sought by U.S. Cellular, but approved the
construction of a 195-foot tower,which would provide wireless capabilities to a significant area of the county
currently without quality wireless service. The court found no prohibition because the board's careful
consideration of the application provided no indication that future tower requests would be"fruitless." The
court concluded that"[f]ar from seeking to prohibit service, Board members indicated a willingness to ensure
coverage for the entire target area.");see also, Cellco Partnership v. Board of Supervisors of Roanoke County,
2004 U.S. Dist. LEXIS 27348 (W.D.Va. 2004)(no prohibition where board denied application for 127-foot
tower and associated facilities where board had previously approved 12 special use permits for towers, wireless
service provider already provided service to a substantial portion of the county,and the proposed facilities
would duplicate services already provided); Crown Castle Atlantic, LLC v. The Board of Supervisors of
Loudoun County,2002 U.S. Dist. LEXIS 22000(E.D.Va. 2002)(no prohibition of service even though denial of
140-tower left significant gap in coverage because there was no evidence that further amendment to the current
application or seeking approval for a facility at another location would be fruitless).
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4. A locality's regulations may not unreasonably discriminate among providers of functionally
equivalent services
Section 332(c)(7)(B)(i)(I)prohibits regulations that unreasonably discriminate against functionally
equivalent wireless services(i.e.,PCS versus cellular or one wireless company versus another):
The regulation of the placement,construction,and modification of personal wireless service
facilities by any State or local government or instrumentality thereof. . . shall not unreasonably
discriminate among providers of functionally equivalent services . . .
Congress intended that localities not favor one technology over another, or favor one service provider
over another. However,this limitation does not require that all wireless providers be treated identically. The
fact that a decision has the effect of favoring one competitor over another, in and of itself, is not a violation of
the discrimination clause. The discrimination clause provides a locality with the flexibility to treat facilities that
create different visual,aesthetic, or safety concerns differently to the extent permitted under generally applicable
zoning requirements even if those facilities provide functionally equivalent services.H.R. Conf. Rep. No. 104-
458, 104th Congress, 2nd Sess. 208 (1996).
The denial of an application for a wireless facility that is based on land use principles is not
"unreasonable discrimination."AT&T Wireless PCS, Inc. v. City Council of City of Virginia Beach, 155 F.3d
423 (4th Cir. 1998). For example, if a city council approves a special use permit for a wireless facility in a
commercial district, it is not necessarily required to approve a permit for a competitor's facility in a residential
district.H.R. Conf. Rep. No. 104-458, 104th Congress, 2nd Sess. 208(1996).
5. A locality must act on a request for a permit within a reasonable time
Section 332(c)(7)(B)(ii)requires that a locality act on a request for a wireless permit within a
reasonable time:
A State or local government or instrumentality thereof shall act on any request for authorization
to place, construct,or modify personal wireless service facilities within a reasonable period of
time after the request is duly filed with such government or instrumentality,taking into account
the nature and scope of such request.
The Act does not define what a"reasonable period of time"is. This requirement was not intended to
give preferential treatment to the wireless industry in the processing of requests,or to subject their requests to
any but the generally applicable timeframes for a zoning decision.Sprint Spectrum L.P. v. City of Medina, 924
F.Supp. 1036(W.D.Wash. 1996). Rather, it only requires that an application be acted upon within the period
provided under Virginia law and local ordinance. However, a decision made after the period provided by law is
not necessarily a violation of this limitation because, as its language provides,the"nature and scope"of the
request must be considered,and each situation must be independently examined. Virginia Metronet v. James
City County, 984 F.Supp. 966 (E.D.Va. 1998)(fourteen month delay between submission of application and
decision not unreasonable per se).
6. A locality may not regulate radio frequency interference
Attempts by state or local governments to regulate in the field of radio frequency interference have been
found to be preempted by federal law.Freeman v. Burlington Broadcasters Inc., 204 F.3d 311 (2d Cir. 2000);
Southwestern Bell Wireless Inc. v. Johnson County Board of County Commissioners, 199 F.3d 1185 (10`h Cir.
1999). In Freeman,the court struck down a permit condition requiring users of a communications tower to
remedy any interference with reception in homes in the area. In Southwestern Bell,the court voided a zoning
regulation that prohibited wireless telecommunications towers and antennas from operating in a manner that
interfered with public safety communications.
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In In the Matter of Petition of Cingular Wireless, et al., WT Docket No. 02-100,the Federal
Communications Commission("FCC")issued a memorandum opinion and order in an administrative
proceeding pertaining to Anne Arundel County, Maryland. At issue was a county ordinance requiring that, prior
to county issuance of a zoning certificate, owners and users of telecommunications facilities had to show that
their facilities would not degrade or interfere with the county's public safety communications systems. The
FCC found that the county ordinance regulating radio frequency interference was preempted by federal law.
7. Onerous regulations may be found to be a barrier to entry under 47 U.S.C. &253: a case from the
Ninth Circuit court of appeals
Since the adoption of the Telecommunications Act of 1996, challenges to local zoning decisions
regarding wireless facilities have been brought under 47 U.S.C. § 332(c)(7). However, in Sprint Telephony
PCS, L.P. v. County of San Diego,490 F.3d 700 (9th Cir. 2007),the Ninth Circuit held that a wireless provider
could challenge the validity of a locality's wireless regulations under 47 U.S.C. § 253, entitled"Removal of
Barriers to Entry."47 U.S.C. § 253 is broader in scope than 47 U.S.C. § 332(c)(7)and applies to not only
wireless providers,but other communications providers as well. The Fourth Circuit,whose jurisdiction includes
Virginia, has not considered the applicability of 47 U.S.C. § 253 to wireless telecommunications. However,the
Sprint case is, at the very least, a cautionary tale for Virginia localities about the possible consequences of over-
regulation. 47 U.S.C. § 253(a)states:
(a) In general. No State or local statute or regulation, or other State or local legal requirement,
may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate
or intrastate telecommunications service.
In Sprint,the county's challenged wireless telecommunications ordinance established a four-tier system
for granting discretionary wireless permits. Sprint alleged that the ordinance was so"onerous"as to effectively
prohibit the provision of telecommunication services. The court summarized those requirements as follows:
• Wireless telecommunications ordinance application requirements: Under the county's wireless
ordinance,a permit applicant was required to: (1) identify the geographic area served by the site, list all
of the applicant's other sites in the area, and describe why the site is necessary to the applicant's
network; (2)submit a"visual impact analysis"that describes the"maximum silhouette, viewshed
analysis, color and finish palette and proposed screening,"and include simulated photographs of the
site; and(3)create a narrative detailing the site's height,maintenance, noise emissions, alternative
placement in a preferred site(if the site does not fall within one of the geographic areas preferred by the
County for wireless facilities), landscaping plan, fire service plan, hazardous materials use, maintenance
personnel parking plan(if the site is located in a public right of way),"a letter stating the applicant's
willingness to allow other carriers to co-locate on their facilities whenever technically and economically
feasible and aesthetically desirable,"and the"lease area of the proposed facility on the plot plan." The
ordinance also discussed the general and design regulations applicable to wireless facilities, so that an
applicant may design a compliant facility.
• Zoning ordinance application requirements: In addition to the requirements in the wireless
telecommunications ordinance,wireless providers who applied for use permits were subject to other
requirements contained in the zoning ordinance. The zoning ordinance required applicants to submit:
(1)a list of"all persons having a[n] interest in the application as well as the names of all persons having
any ownership interest in the property involved;"(2)complete plans for the site; and(3)an"appropriate
environmental impact review document."
• Discretionary review process: The review process reserved to the county's permitting authority
significant discretion. In order for a use permit to be granted,the authority was required to find that
"the location, size,design, and operating characteristics of the proposed use will be compatible with
adjacent uses,residences, or structures." The zoning ordinance listed items of"consideration,"but also
allowed the permitting authority to consider"any other relevant impact of the proposed use."
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Additionally,the wireless telecommunications ordinance required that the decision maker determine
that the proposed facility was appropriately"camouflaged,""consistent with community character,"and
designed to have minimum"visual impact." Finally,the zoning ordinance, among other things, allowed
the county's permitting authority to impose conditions on the use consistent with the objectives of the
zoning ordinance,to permit seemingly open-ended public hearings, and to order revocation or
modification of a use permit following a violation.
• Punishment: The wireless telecommunications ordinance provided that it was a misdemeanor or an
infraction to violate a use permit's conditions.
The Ninth Circuit focused on the four key elements of the county's regulations described above that had
the effect of prohibiting wireless service:
• The application submission requirements: The county's wireless telecommunications ordinance added
submission requirements to an already voluminous list required by the zoning ordinance.
• The discretion reserved to the permitting authority: The court described this authority as"open-ended"
discretion by, for example,allowing"the decision maker to determine whether a facility is appropriately
`camouflaged,' `consistent with community character,' and designed to have minimum `visual impact.'
• The public hearing requirements: The court described these requirements as permitting"seemingly
open-ended public hearings."
• The criminal penalties for violation of a use permit: The court described the criminal penalties as a
"threat."
The Ninth Circuit held that the county's wireless regulations violated 47 U.S.C. § 253(a)as a matter of
law(i.e.,they imposed barriers to entry)and were,therefore,preempted by federal law.
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Albemarle County Planning Commission
April 22, 2008
The Albemarle County Planning Commission held a meeting and public hearing on Tuesday, April 22,
2008, at 6:00 p.m., at the County Office Building, Lane Auditorium, Second Floor, 401 McIntire Road,
Charlottesville, Virginia.
Members attending were Marcia Joseph, Bill Edgerton, Eric Strucko, Jon Cannon, Vice-Chairman;
Thomas Loach; Linda Porterfield and Calvin Morris, Chairman. Julia Monteith, AICP, non-voting
representative for the University of Virginia was absent.
Other officials present were Wayne Cilimberg, Planning Director; Elaine Echols, Principal Planner;
Summer Frederick, Senior Planner; Bill Fritz, Chief of Current Development; Megan Yaniglos, Planner;
Jay Schlothauer, Director of Inspections; Mark Graham, Director of Community Development; Glenn
Brooks, County Engineer; Amelia McCulley, Director of Current Development & Zoning and Greg
Kamptner, Deputy County Attorney.
Call to Order and Establish Quorum:
Mr. Morris called the regular meeting to order at 6:00 p.m. and established a quorum.
Other Matters Not Listed on the Agenda from the Public:
Mr. Morris invited comment from the public on other matters not listed on the agenda.
Neil Williamson, with the Free Enterprise Forum, said that there was a matter on the consent agenda
regarding the resolution of intent to amend Section 8.5.5.2 of the zoning ordinance that does not have
time allocated for public comment that he wished to comment on.
Mr. Morris noted that item has been pulled and it is going to be on the regular agenda and public
comment will be taken.
There being no further comments, the meeting moved to the next item.
Review of Board of Supervisors Meeting—April 9, 2008.
Mr. Cilimberg summarized the actions taken by the Board of Supervisors on April 9, 2008.
Consent Agenda:
a. AFD2008-00001 Carter's Bridge Review
The district currently includes approximately 8.906.8 acres in 65 parcels, and is located near
Carter's Bridge and Blenheim. (Scott Clark)
b. AFD2008-00002 Lanark Review
The district currently includes approximately 5,821 acres in 40 parcels, and is located along
Carters Mountain south of Monticello. (Scott Clark)
c. AFD2008-00003 Panorama Review
The district currently includes approximately 272.9 acres in nine parcels, and is located near the
South Fork Rivanna Reservoir. (Scott Clark)
d. AFD2008-00005 Moorman's River Addition
Proposal to add one parcel of 116 acres to the District. (Scott Clark)
e. Approval of Minutes—10-3-06, 11-7-06, 11-21-06, and 3-18-08
Mr. Morris asked if any Commissioner would like to pull an item from the consent agenda for discussion.
Ms. Porterfield indicated she would not vote on the minutes since she was not on the Commission at the
time of the meetings.
ALBEMARLE COUNTY PLANNING COMMISSION —APRIL 22, 2008 1
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Motion: Mr. Cannon moved, Mr. Strucko seconded, for approval of the consent agenda.
The motion passed by a vote of 6:0:1. (Ms. Porterfield abstained.)
Item Called Up From the Consent Agenda:
Resolution of Intent—to amend section 8.5.5.2 of the Zoning Ordinance (Greg Kamptner)
Mr. Morris said that this item originally appeared on the consent agenda, but the Commission wanted to
pull it. This is strictly the first step in actually coming up with a resolution of intent. Last week the
Commission requested counsel to take a look at this and draft some language. He thanked Mr. Kamptner
for being so responsive.
Mr. Kamptner summarized the proposed amendment.
Mr. Morris asked if once this is drafted would it come back to the Planning Commission for an open public
hearing.
Mr. Kamptner replied yes, that the Commission could certainly ask that it come back first for a work
session and it could be farmed out to community development to establish a round table type of
discussion that they sometimes do with new regulations. Before it is acted on the ordinance has to come
to the Planning Commission for a public hearing and a recommendation before it goes to the Board of
Supervisors.
Mr. Morris opened the hearing and invited public comment.
Neil Williamson, of the Free Enterprise Forum, spoke. He strongly encouraged the Planning Commission
to direct staff to hold round table discussions with folks who in some cases are unaware of the impacts
this may have on them, how to mitigate those impacts and how to establish vested rights. Also, they need
to have information on what is the actual scope of this amendment. He felt that the best way to move
forward with this and address the frustration that exists is to involve those that are going to be regulated
and have a very open conversation.
Valerie Long echoed Mr. Williamson's comments and expressed great interest on behalf of the
development community and a number of clients she represents who have obtained rezoning approvals
for planned district projects about the significance of this issue and the concern that it has created with
their clients who have invested tremendous amounts of money in projects that have obtained zoning
approval and have spent years and hundreds of thousands of dollars preparing and obtaining zoning
approvals for application plans or master plans for their projects. She knew that there have been cases
that have been very frustrating. She was present last week at the Clifton Lakes hearing and she
appreciated their frustration about that. There are a handful of those types of projects. She asked that
they don't throw the baby out with the bath water. Most of the projects of significant size that have been
approved in this community are a planned district. She asked that the Planning Commission not make it
too big of a solution when it is a few number of projects that are causing the problem. They would
welcome the opportunity to participate in discussions on behalf of clients that they work with. Their clients
would as well be interested in participating.
Mr. Morris reiterated that this will come before the Commission again. He closed the public hearing to
bring the matter before the Commission.
Mr. Edgerton said that in response to the comments that it would be very healthy to have a handle on the
number of projects mentioned that do not fit into this situation because they have been approved under
the existing ordinance. It is the projects that are being grandfathered back 30 years that he thought they
were struggling with. He very much would welcome the participation and engagement of the development
community in this process. He felt that it may be important in an effort to be fair to all to try to get a
handle on it by asking the development community to let us know which projects they feel would be
ALBEMARLE COUNTY PLANNING COMMISSION—APRIL 22, 2008 2
FINAL ACTION MEMO
unfairly treated under what is being proposed. In the project reviewed last week there has been no effort
in 30 years to vest any rights. As Mr. Kamptner noted under state law it would not qualify for any vesting.
They are trying to address a glaring loophole in the ordinance that goes back to stale zoning that does not
exist any more. Certainly they need to hear about the ones that may feel that they are being challenged
by this.
Motion: Mr. Edgerton moved, Mr. Strucko seconded to approve the resolution of intent to amend section
8.5.5.2 of the zoning ordinance.
The motion passed by a vote of 7:0.
Mr. Morris said that the Commission looks forward to this item coming back.
Public Hearing Items:
ZTA-2007-00001 Zero Lot Line Residences in the R-2 to R-15 Zoning District
Amend Sections 3.1 (Definitions), 4.11.3 (Reduction of building separation and side yards), 4.11.3.1
(Untitled), 4.11.3.2 (Untitled), 4.11.3.3 (Untitled), 14.3 (Area and bulk regulations, 15.3 (Area and bulk
regulations), 16.3 (Area and bulk regulations), 17.3 (Area and bulk regulations), 18.3 (Area and bulk
regulations). This ordinance would amend section 3.1 by defining "zero lot line" and "zero lot line
development); sections 4.11.3, 4.11.3.1, 4.11.3.2 and 4.11.3.3 by revising and adding regulations
allowing reducing the minimum building separation and side yards for structures where there is adequate
fire flow and for dwelling units in zero lot line developments; and sections 14.3, 15.3, 16.3, 17.3 and 18.3
by revising the respective district yard regulations to allow minimum side yards to be reduced to zero feet
on one side in qualifying zero lot line developments. A copy of the full text of the ordinance is on file in
the office of the Clerk of the Board of Supervisors and in the Department of Community Development,
County Office Building, 401 McIntire Road, Charlottesville, Virginia. (Elaine Echols)
Motion: Mr. Cannon moved, Mr. Strucko seconded to recommend approval of the adoption of the draft
ordinance for ZTA-2007-01, Zero Lot Line Residences in the R-2 to R-15 Zoning District as submitted by
staff with the following caveats and changes:
1. When the ordinance is presented to the Board of Supervisors the Fire Marshal or other expert
official needs to be available to address any concerns with the 10' separation as raised by Mr.
Loach.
2. The staff recommended changes in the language as shown on the screen for sections A and B be
included.
3. Section B2 be removed as unnecessary.
4. Section C be removed since it is inconsistent with the concerns intended to be addressed by the
resolution of intent approved earlier in the evening.
The motion passed by a vote of 7:0.
Mr. Morris said that ZTA-2007-01 would go to the Board of Supervisors with a recommendation for
approval at a date to be determined.
The Planning Commission took a break at 7:12 p.m.
The meeting reconvened at 7:18 p.m.
SP-2007-00054 SOCA-All Weather Synthetic Field-Belvedere (Sign # 16 &49)
PROPOSED: Soccer Field and associated parking and spectator seating adjacent to Belvedere and
accessory building near soccer fields in the floodplain
ZONING CATEGORY/GENERAL USAGE: R-4 (4 units/acre)
ALBEMARLE COUNTY PLANNING COMMISSION —APRIL 22, 2008 3
FINAL ACTION MEMO
SECTION: Section 15.2.2.4 of the Zoning Ordinance which allows athletic facilities for fill in the R4
District
COMPREHENSIVE PLAN LAND USE/DENSITY: Neighborhood Density Residential - residential (3-6
units/acre) and supporting uses such as religious institutions and schools and other small-scale non-
residential uses in Neighborhood 2
ENTRANCE CORRIDOR: No
LOCATION: At the northern end of Belvedere Drive off of East Rio Road
TAX MAP/PARCEL: Portion of 62A3-1 and 62-2A
MAGISTERIAL DISTRICT: Rivanna
(Elaine Echols, Summer Frederick)
AND
SP-2007-00058 SOCA-Belvedere/Flood Plain Field (Sign # 16 &49)
PROPOSED: Floodplain disturbance for 5 soccer fields
ZONING CATEGORY/GENERAL USAGE: R-4 (4 units/acre) and Neighborhood Model District
(residential [3 - 34 units/acre] mixed with commercial, service and industrial uses); FH Flood Hazard
Overlay District - agricultural, recreational, and utility location uses which will not pose a danger to life or
property in the event of a flood
SECTION: Section 30.3.5.2.2.3 of the Zoning Ordinance which allows for fill in the floodplain
COMPREHENSIVE PLAN LAND USE/DENSITY: Neighborhood Density Residential - residential (3-6
units/acre) and supporting uses such as religious institutions and schools and other small-scale non-
residential uses in Neighborhood 2.
ENTRANCE CORRIDOR: No
LOCATION: adjacent to south bank of the South Fork Rivanna River at the northern end of Belvedere
Drive which is off of East Rio Road
TAX MAP/PARCEL: portions of 62-2C, 62A3-1, and 62-2B
MAGISTERIAL DISTRICT: Rivanna
(Elaine Echols, Summer Frederick)
Motion on SP-2007-054:
Motion: Ms. Cannon moved, Mr. Strucko seconded, for approval of SP-2007-00054, SOCA-All Weather
Synthetic Field-Belvedere with the following amendments to the staff recommended conditions:
1. The location of the synthetic field shall be in general accord with the conceptual plan
entitled, "Belvedere — SOCA Special Use Permit: All Weather Synthetic Turf Field", and dated
March 28, 2008.
2. Public streets which provide access to the synthetic field and to the parking area shall be
constructed prior to public use of the field.
3. Public streets which provide on-street parking to accommodate parking requirements for the
synthetic field shall be a minimum of 32' in width or other width as may be required by the
County Engineer and approved as a variation by the Director of Planning.
4. Pedestrian access shall be provided from the end of Belvedere Boulevard. to the synthetic field in
accordance with the Albemarle County Design Manual standards for permanent paths.
5. In conjunction with its review and approval of a site plan or subdivision plat that pertains to or
includes TMP 062A30-00-00-00100, the County may require that Belvedere Boulevard be
extended to provide public street access to TMP 06200-00-00-002A0.
And the following to be covered by additional conditions (language to be finalized before the Board of
Supervisors' meeting):
ALBEMARLE COUNTY PLANNING COMMISSION—APRIL 22, 2008 4
FINAL ACTION MEMO
6. The applicant shall demonstrate as a condition of final site plan approval that the on-site parking
provided for the use, including on-site on-street parking, is adequate for the proposed use.
7. The hours of use for organized activities and events are limited to the time between 8:00 a.m. and
9:30 p.m. (The language to be worked out prior to Board of Supervisors meeting.)
8. A pro-rata contribution to the traffic signal at Belvedere Boulevard and Rio Road, the primary
access to Belvedere, to be worked out before the presentation to the Board of Supervisors.
9. The proposed route of Meadow Creek Parkway (Northern Free State Road) to be designated on
the site plan consistent with the alignment that is shown in the documents.
10. If the use or structure is not commenced by May 14, 2013, this special use permit shall be
deemed abandoned and the authority granted by this permit shall terminated.
Mr. Strucko asked for one clarification on the hours of operation for SOCA sponsored soccer events. He
asked if other type events are being planned for this facility other than SOCA for the synthetic field. He
suggested that the condition be amended to say SOCA sponsored events or broader kinds of events.
Mr. Kamptner noted that SOCA might not be here forever. He suggested that they use language like
organized activities and events or something like that. He would like to work with the zoning administrator
to come up with language so that it is not organization specific.
Mr. Cannon accepted the amendment to the motion, which was seconded by Mr. Strucko.
The motion passed by a vote of 7:0.
Motion on Critical Slopes Waiver:
Ms. Joseph noted that the critical slope was a very small intrusion in this area.
Motion: Ms. Joseph moved, Mr. Cannon seconded, for approval of critical slope waiver for SP-2007-
00054, SOCA-All Weather Synthetic Field-Belvedere.
The motion passed by a vote of 7:0.
Mr. Morris stated that the critical slope waiver was approved. SP-2007-00054, SOCA-All Weather
Synthetic Field- Belvedere will go before the Board of Supervisors on May 14 with a recommendation for
approval.
Motion on SP-2007-058:
Motion: Ms. Porterfield moved, Mr. Strucko seconded, for approval of SP-2007-00058, SOCA-
Belvedere/Flood Plain Field with the conditions as recommended by staff.
1. The fill in the floodplain shall be as shown generally on the plan entitled, "Belvedere SOCA Special
Use Permit: Flood Plain Fields" prepared by McKee Carson and last dated March 25, 2008.
2. If required by the Federal Emergency Management Agency (FEMA), the applicant shall obtain a map
revision, letter of revision, or letter of amendment. The County Engineer shall be copied on all
correspondence related to changes to the floodplain.
3. Army Corp of Engineers, Virginia Department of Environmental Quality, and other necessary state
and federal agency approvals must be obtained prior to issuance of grading permits.
4. Natural Resources Manager approval of a stream buffer mitigation plan prior to the issuance of a
grading permit prior to placement of any fill in the floodplain, and County approval an erosion and
sediment control plan prior to the issuance of a grading permit for placement of any fill in the
floodplain.
ALBEMARLE COUNTY PLANNING COMMISSION —APRIL 22, 2008 5
FINAL ACTION MEMO
5. The 700'-long section of dry-stone wall bounding the inner edge of the floodplain west and northwest
of the proposed flood plain fields as identified in the Phase I Archaeological Survey and
Geoarchaeological Investigation in Two Portions of the Belvedere Development Property, Albemarle
County, Virginia dated February 6, 2008, shall be retained and preserved. The wall shall be clearly
identified and labeled on the plan of development. The 50' at the northern end of the wall may be
disturbed for the proposed road construction as currently illustrated on the plan. The stone that is
disturbed by the road construction shall be used to repair remaining portions of the wall or to extend
the wall at its south end. A plan detailing the proposed re-use of the stone shall be submitted for
review and is subject to the approval of the Director of Planning prior to the commencement of road
construction. Methods for protecting the remaining wall during construction and for preserving the
remaining wall following construction shall be submitted for review and are subject to the approval of
the Director of Planning prior to the commencement of road construction.
6. Additional archaeological testing, as recommended in the Phase I Archaeological Survey and
Geoarchaeological Investigation in Two Portions of the Belvedere Development Property, Albemarle
County, Virginia dated February 6, 2008, shall be conducted to more fully assess the extent of
cultural resources in Area B of the Belvedere project area. Based on the findings of this additional
testing, additional archaeological studies and/or treatments may be required. The additional testing
shall be conducted by a qualified archaeologist who meets the qualifications set forth in the Secretary
of the Interior's Professional Qualification Standards. Additional studies required as a result of the
findings of the testing shall be completed prior to disturbance of the site. Treatments required as a
result of the findings of the testing shall be outlined in a treatment plan that is subject to approval of
the Director of Planning.
The motion passed by a vote of 7:0.
Mr. Morris stated that SP-2007-00058, SOCA-Belvedere/Flood Plain Field will go before the Board of
Supervisors on May 14 with a recommendation for approval.
Mr. Strucko left the meeting at 8:58 p.m.
The Planning Commission took a break at 8:58 p.m.
The meeting reconvened at 9:11 p.m.
Regular Items:
SUB-2008-00022 Bellair#5- Preliminary
Request for preliminary plat approval to create 2 lots on 2.066 acres. The property is zoned R-1
Residential. The property, described as Tax Map 76C-02 Parcel 5 is located in the Samuel Miller
Magisterial District on Deer Path Road [Route 809] at the intersection with Old Farm Road [Route 846].
The Comprehensive Plan designates this property as Neighborhood Density in Urban Area 6. (Megan
Yaniglos)
Mr. Edgerton said that he heard staff say loud and clear that all easements have to be shown. If that
needs to be part of this plat, then it needs to be shown with something more than a magic marker. He
would like some assurance that it really has been looked at a little bit more than the critical slopes if there
are other issues. With that in mind he was going to recommend denial. Mr. McDaniel has given us an
interpretation how it is against the regulations to have a septic site any closer than 5' to the property line.
It is hard to determine that from the free hand drawing that shows the potential septic site. He asked that
the Commission be provided with some clear engineering on that. He would very much like to have both
Mr. Crauns here to explain exactly what sort of engineering they have done on this.
Motion: Mr. Edgerton moved, Ms. Joseph seconded, for denial of SUB-2008-00022, Bellair #5
Preliminary as the plat does not comply with the ordinance. It needs to show all of the easements and
clear engineering needs to be provided for the potential septic site.
ALBEMARLE COUNTY PLANNING COMMISSION—APRIL 22, 2008 6
FINAL ACTION MEMO
The motion carried by a vote of 6:0. (Mr. Strucko was absent.)
Mr. Kamptner noted for the record that the denial was because the preliminary plat does not meet the
requirements of Section 14-302.a.4 showing the location and dimensions of all private easements.
Ms. Joseph noted that it also included the septic location.
Mr. Morris stated that SUB-2008-00022 Bellair#5 Preliminary was denied.
Work Sessions
rH...
Presentation and discussion Of ibemarle County's Personal Wireless Facilities Policy. (Bill Fritz)
The Planning Commission held a work session to review the Albemarle County Personal Wireless
Facilities Policy. Presentations on the history of the policy and its application were given by staff (Bill
Fritz) and several members of the public (Steve Blaine and Stephen Waller). Staff presented several
questions and asked for the Commission's input. The Commission received public comment and
provided comments and suggestions. Due to the late hour, the Planning Commission requested staff to
set up another work session in another meeting room at an earlier hour to finish the discussion on the
questions and issues presented.
Old Business:
There being no old business, the meeting moved to the next item.
New Business:
There being no new business, the meeting moved to the next item.
Adjournment
With no further items, the meeting adjourned at 10:56 p.m. to the Tuesday, April 29, 2008 meeting at 6:00
p.m. at the County Office Building, Room 241, Second Floor, Auditorium, 401 McIntire Road,
Charlottesville, Virginia.
V. Wayne Cilimberg, Secretary
(Recorded and transcribed by Sharon C. Taylor, Clerk to Planning Commission & Planning Boards)
ALBEMARLE COUNTY PLANNING COMMISSION —APRIL 22, 2008 7
FINAL ACTION MEMO
STAFF CONTACTS: William D. Fritz, AICP
PLANNING COMMISSION: April 22, 2008
AGENDA TITLE: Personal Wireless Service Facilities Worksession
Background
In December 2000 Albemarle County adopted a Personal Wireless Service Facilities
Policy as a component of the Comprehensive Plan. Due to the length of the Wireless
Policy staff has provided a CD with the policy instead of a paper copy. To develop the
policy the County retained the services of Kreines and Kreines, a consulting firm that
specializes in wireless policy. In preparation of the policy, the County held "town hall"
type meetings with all interested parties, work sessions with the Planning Commission
and Board of Supervisors and public hearings to adopt the Comprehensive Plan
Amendment. The wireless policy was developed in response to both the 1996
Telecommunications Act and to the significant volume of requests for"towers"that were
being made.
Some of its guiding principals of the Policy were put into use even before its adoption.
While the Policy was being adopted, the County denied an application for a wireless
facility. That denial was challenged in Court and ultimately, the County action was
upheld. The decision of the Court has been seen by the County as verification that the
approach of the Policy is sound and consistent with the requirements of the 1996
Telecommunications Act. Following the adoption of the Wireless Policy, the Zoning
Ordinance was amended to enact the recommendations of the Policy.
This work session is intended to a) provide an outline of what the Policy and Ordinance
currently require and to b) identify some new challenges and questions that have arisen
since the work on the Policy and Ordinance was completed.
1. Background
A. Current Requirements - Ordinance Definitions and the
1996 Telecommunications Act
The Zoning Ordinance contains a definition for Personal Wireless Service Facility as
follows:
Personal wireless service facility:A facility for the provision of personal wireless services,as
defined by 47 U.S.C. §332(Section 704 of the Telecommunications Act of 1996), including those
Federal Communications Commission licensed commercial wireless telecommunications services
such as cellular,personal communications services(PCS), specialized mobile radio(SMR),
enhanced specialized mobile radio(ESMR),and unlicensed wireless services and common carrier
wireless exchange access services. (Added 10-17-01;Amended 10-13-04)
1
In reviewing any wireless application, the County must adhere to the provisions of
Section 704 of the 1996 Telecommunications Act [47 U.S.C. § 332(c)(7) ("section
332(c)(7)"), which was adopted as part of the Telecommunications Act of 1996 ("Act")].
The most relevant portion of that law reads:
(A) GENERAL AUTHORITY- Except as provided in this paragraph, nothing in
this Act shall limit or affect the authority of a State or local government or
instrumentality thereof over decisions regarding the placement, construction, and
modification of personal wireless service facilities.
(B) LIMITATIONS-
(i) The regulation of the placement, construction, and modification of
personal wireless service facilities by any State or local government or
instrumentality thereof-
(i) shall not unreasonably discriminate among providers of functionally
equivalent services; and
(ii) shall not prohibit or have the effect of prohibiting the provision of
personal wireless services.
(ii) A State or local government or instrumentality thereof shall act on any
request for authorization to place, construct, or modify personal wireless
service facilities within a reasonable period of time after the request is
duly filed with such government or instrumentality, taking into account
the nature and scope of such request.
(iii) Any decision by a State or local government or instrumentality
thereof to deny a request to place, construct, or modify personal wireless
service facilities shall be in writing and supported by substantial evidence
contained in a written record.
(iv)No State or local government or instrumentality thereof may regulate
the placement, construction, and modification of personal wireless service
facilities on the basis of the environmental effects of radiofrequency
emissions to the extent that such facilities comply with the Commission's
regulations concerning such emissions.
(v) Any person adversely affected by any final action or failure to act by a
State or local government or any instrumentality thereof that is
inconsistent with this subparagraph may, within 30 days after such action
or failure to act, commence an action in any court of competent
jurisdiction. The court shall hear and decide such action on an expedited
basis. Any person adversely affected by an act or failure to act by a State
or local government or any instrumentality thereof that is inconsistent with
clause (iv) may petition the Commission for relief.
B. Policy
•
2
The most important principle for siting personal wireless service facilities in Albemarle
County is visibility. Visibility is not the same as aesthetics. Visibility is the primary
focus in the review of personal wireless service facilities. The need for the facility,
coverage area and possible alternative locations are not factors in the review of any
application. The fact that these issues are not part of the current review is not an
oversight. The need to provide this information and whether to factor it into any review
was openly discussed during the preparation of the policy. As a result of this discussion,
an active decision was made during the adoption process for the wireless policy to not
include facility need, coverage area or possible alternative location. Instead, the focus is
on the visibility of a site and it is that factor that determines the appropriateness of any
proposed facility.
SUMMARY OF PERSONAL WIRELESS SERVICE FACILITIES POLICY (as
contained in the policy)
This Policy allows for the location of personal wireless service facilities throughout the
County. The Policy encourages the construction of facilities that have limited visual
impact on the community.
- Visibility is the primary focus in the review of personal wireless service facilities.
Facilities with limited visibility are encouraged.
- Personal wireless service facilities should not be located on ridgetops or along the
ridgeline and they should be provided with an adequate backdrop so that they are not
skylined.
- Personal wireless service facilities should not adversely impact resources identified in
the Open Space Plan or designated as Avoidance Areas.
- Personal wireless service facilities should utilize existing structures where possible.
- Personal wireless service facilities, if appropriately sited and designed, may be
appropriate in any zoning district.
- Ground based equipment should be limited in size and be designed in keeping with the
character of the area.
- Antennas should be mounted close to the supporting structure and be designed to
minimize visibility.
- The personal wireless service facilities policy is primarily intended to address facilities
providing personal wireless service. Other types of wireless facilities are encouraged to
adhere to this policy to the extent possible.
A successful personal wireless service facilities policy will achieve the following:
-Protection of Albemarle County resources.
-A predictable outcome for personal wireless service facility applicants.
-Equal evaluation and review for all applicants.
-The development of standards to be used as findings for decisions on personal wireless
service facility applications.
Visibility is objective because visibility can be measured. Aesthetics is not suggested as a
standard and should not be used to evaluate personal wireless service facilities.
Aesthetics is subjective and cannot be measured uniformly amongst all viewers.
3
These are the antennas
These are the equipment
shelters or cabinets
■
The entire facility is called a"personal wireless service facility." Albemarle County is
engaged in regulating the location of personal wireless service facilities. It is not engaged
in"antenna siting." The County's land use policies and regulations deal with more than
just"antennas" and regulation is concerned with more than just"siting."
The policy deals with 3 concepts, Location, Siting, and Design
"Location"refers to a
property or general area j
where a personal wireless j ! "Siting"refers to a special
service facility is to be placed. / X • • point on a property where a
/ \
personal wireless service
/ \ facility is to be constructed,
such as in the trees,or on the
/
/ root.
"Design"refers to what the \
personal wireless service "._ _ _
facility will look like. ' _ \
4
Location
The Wireless Policy encourages the use of appropriate locations for the siting of
facilities. The Policy discourages locating in areas that would impact Avoidance Areas.
Avoidance Areas are defined in the Zoning Ordinance as:
Avoidance area: An area having significant resources where the siting of personal
wireless service facilities could result in adverse impacts as follows: (i) any ridge
area where a personal wireless service facility would be skylighted; (ii) a parcel
within an agricultural and forestal district; (iii) a parcel within a historic district;
(iv) any location in which the proposed personal wireless service facility 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; or(v) any location within two hundred (200)
feet of any state scenic highway or by-way. (Added 10-13-04)
The placement, construction and/or modification of personal wireless service facilities
within an Opportunity Site is encouraged. The built environment of Albemarle County
contains many potential Opportunity Sites, or man-made sites for personal wireless
service facilities such as rooftops, electric transmission towers, existing towers, church
steeples, and water tanks.
Siting
A personal wireless service facility need not be located only in an Opportunity Site if it is
properly sited. Careful siting may allow a facility to be located in multiple Avoidance
Areas. For example wooded areas may be considered to be an Avoidance Areas,
however with careful siting the wooded area provides screening turning the area into an
Opportunity Site.
The most important guideline for siting personal wireless service facilities in Albemarle
County is visibility.
— The definition of a well-sited personal wireless service facility is that it would be
virtually invisible to most viewers. Such a facility would be an improvement over a
facility that is in the open and very visible.
—A poorly-sited personal wireless service facility is one that has visual impact.
— The degree to which a personal wireless service facility can be made invisible or the
degree to which it has visual impact is often the most important standard by which it can
be evaluated.
5
Visibility is objective because visibility can be measured. Aesthetics is not suggested as a
standard and should not be used to evaluate personal wireless service facilities.
Aesthetics is subjective and cannot be measured uniformly amongst all viewers.
Method For Addressing Setbacks Due To Height
Provisions in the Zoning Ordinance require structures to be set back from the property
line a distance equal to the height of the structure unless a modification is granted by the
Planning Commission. The siting of facilities should not create a hazard to adjacent
property or cause the over-development of property that results in an undue intrusion
onto adjacent property. In order to protect property abutting personal wireless service
facilities, this Personal Wireless Service Facilities Policy recommends that an easement
be obtained on all property extending in all directions from the facility for a distance
equal to the height. This easement will acknowledge that the tower or its components
may fall within the easement area. (It is noted that failure of towers is extremely rare.)
This easement will also allow for the falling of debris, particularly ice, and equipment
used during maintenance, installation and updating of the equipment. If an easement is
not obtained, a modification request for setback must be reviewed by the Planning
Commission.
Easement radius
•
Height
•1
Equals height
of tower
Setback
Design
Once a personal wireless service facility is properly located and properly sited, it must
still be well designed.
A typical treetop tower is designed so that no portion of the facility is more than 10 feet
taller than the tallest tree within 25 feet. Typically, all trees within 200 feet must be
retained except for those identified for removal during the initial review of the
application. This type of facility, due to its limited visibility, has been successfully
deployed in areas designated as Avoidance Areas.
Due to their high visibility, these are examples of facilities that generally do not meet the
County's policy.
Lattice towers may be acceptable if appropriately sited. Guyed towers are commonly
used in more remote locations where backhaul is not available. The dish on the guyed
tower at right is to provide backhaul because wireline is not available to do so. The use of
6
land based wirelines for backhaul is preferred.
MTFOIM
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Lattice towers are capable of Guyed towers,capable of even greater
great height,but they are heights,require large expanses of land
highly visible. for guy wire anchors.
Ground-mounted monopoles and masts are acceptable for personal wireless service
facilities. Monopoles are acceptable, particularly those where the antennas do not
protrude far from the pole. Because monopoles are shorter than guyed towers or lattice
towers, the wireless carriers will require more of them. Masts are preferable, because they
are shorter and more slender than monopoles and the dual-polarized antennas can be
7
kept close to the pole (and the equipment can be buried). Because masts are shorter
than monopoles, the wireless carriers will require more of them.
(Both examples shown are for dualpolarized antennas, which are commercially available
for both Cellular and PCS applications.)
Monopole Mast
Roof-mounted personal wireless service facilities are acceptable. Roof-mounted facilities
do not need to project up. Panel antennas should be located so that they do not peak
above the roofline and should be positioned below the parapet.
8
Antenna arrays are how the antennas are combined on a mount.
This antenna array on Barracks Road is sometimes called a"reindeer hat" or"top hat"
array. These types of antennas can be found on transmission towers, lattice towers and
monopoles. These antenna arrays are provided for "spatial diversity", but they are highly
visible and are discouraged. These antenna arrays do not comply with the design
guidelines of the Wireless Policy.
a
o
,t,,,,i:of.
i_ , '
IEt f
: 3=i, f�Fw�
,,,, 1:.ir,„i . . it s
pia tyv, .„-,-;,„ + q;_
11
This is a dual-polarized or cross-polarized antenna on 5th Street. It can provide for
polarization diversity and can do everything that the "top hat" array can do. Dual
polarization eliminates the need for"spatial diversity". Dual-polarized antennas cannot
be placed as high and, therefore, more sites will be required. However, they do comply
with the design guidelines of the Wireless Policy.
9
,Ai
II
Whip or omnidirectional antennas are acceptable. These antennas have the least visual
impact when they are placed at a distance. As a viewer moves closer to whip antennas,
they become more visible and more intrusive.
10
s !-5
2f5
,. .
Ito
Personal wireless service facilities are composed of antennas and equipment area. The
equipment is housed in equipment shelters, cabinets and areas that should be small and
designed to blend with the surrounding environment or buried underground. The County
recognizes that differences exist between Cellular Analog, Cellular Digital and PCS
equipment. Each system should use the smallest equipment available and use sites and
designs that minimize the equipment's impact. Equipment shelters, cabinets and
maintenance areas are where most of the cost of a personal wireless service facility is
Equipment generally should not be allowed within a side yard or rear yard. With careful
siting, buried equipment may be appropriate within side yards or rear yards or in areas of
high visibility. When the equipment area is large, or exposed, it should be buried in an
underground vault. In other cases it may be appropriate to design the equipment area as a
shed, barn or other structure in keeping with the character of the area.
11
Personal wireless service facilities that are perfectly located can still be highly visible,
although a poorly-located site will tend to be even more visible. Personal wireless service
facilities that are properly sited will almost always be less visible, but siting does not
guarantee invisibility. Personal wireless service facilities that are well-designed should
ideally call less attention to themselves, but it is possible to design a site and still have it
highly visible. The personal wireless service facilities policy proposes a guideline of
visibility so that each application for a personal wireless service facility can be measured
by its ability to be seen.
Visibility
The location, siting and design of a site with limited visibility has the least potential for
impacts. In order to minimize visibility the backdrop of the facility must be considered.
Facilities located on a ridge will be skylined and therefore will be visible. Facilities
located with a backdrop of trees have limited visibility and therefore limited impacts.
The Wireless Policy attempts measure the three types of visual impact.
Incompatible. The personal
•4 , -, Obhusive. The personal
wireless service facility is out of
4" ♦
wireless service facility context with its surroundings as
' � r-�n shots it in this photograph from
overwheluts its
Y. T `. surroundings as shown in
Hyannis,Massachusetts.
'' -, this photograph from
Gainesville,Florida.
lit 4
Intrusive. The personal F ,
wireless service facility �►
' -,7„ intrudes into its
.1 . surroundings as show-n
r in this photograph hour
/ K a F �4;•i
Portsmouth,\ecs
_ �j i Hampshire. , _ `---i... ‘,. , 1 r—p.-
. , .... .,i.
_sr
Mitigations
A personal wireless service facility that scores highly on the visibility scale need not be
rejected. Visual impact can be mitigated in one of the following ways:
— Camouflage. This requires minimal changes to the host structure or the personal
wireless service facility site's setting to accommodate the personal wireless service
facility. Treetop towers are a form of camouflage.
12
— Concealment. The complete enclosure of a personal wireless service facility so it can't
be seen is considered concealment.
— Disguise. Changing the appearance of a personal wireless service facility to appear to
be something it isn't is considered disguise.
The most important rule in mitigating visual impact is to avoid creating even more visual
impact through an attempted mitigation. For example, some rural communities use farm
silos to house a personal wireless service facility. If the silo already exists, it could be an
excellent example of camouflage or concealment. If a new silo were built only as a
disguise for mounting a personal wireless service facility, it would probably not be an
acceptable solution in Albemarle County. Reducing the height or bulk of a personal
wireless service facility could be considered mitigation. However, to achieve a true
reduction in visibility, a substantial reduction in height and/or bulk would be necessary.
Regulatory Concepts for Applications
Tiered Approval System
Tier One - Personal Wireless Service Facilities located within existing structures, or
antenna attached to an existing conforming structure other than a flag pole, that do not
exceed the height of the structure, and are flush mounted to the structure, or is located
within or camouflaged by an addition to an existing structure determined by the agent to
be in character with the structure and the surrounding district.
Tier Two—Personal Wireless Service Facilities attached to an existing conforming
structure or Personal Wireless Service Facilities attached to a new structure no more than
10 feet taller than the tallest tree within 25 feet of the proposed structure.
Tier Three - Personal Wireless Service Facilities attached to a structure other than
described in Tier One or Tier Two.
2. Issues for the PlanninE Commission
Since the development of the Wireless Policy and the Ordinance regulations, the
following issues have arisen:
A. Distance from the Reference Tree
Neither the Wireless Policy nor the Ordinance is explicit in how to measure the
distance from the tallest tree (also known as reference tree) within 25 feet. In
fact, there are various references in the Ordinance which could provide as many
as three different points from which to measure: a)the tree trunk; b) the tree drip
line; or c)the crown of the tree. The Zoning Administrator has offered an
advisory opinion that the drip line should be used in an effort to best preserve the
viability of the tree. The drip line is the area of the most extensive root system
which supports and feeds the tree. This advisory opinion was a result of advice
13
from a landscape architect and a planner whose work involves the installation of
personal wireless facilities.
The natural concern is that significant trees also have fairly wide drip lines and
construction within the dripline could damage the tree. Construction includes
digging and pouring the footing (which can be 10 or more feet deep) and
installing the pole in sections. Construction within the drip line involves
disruption and removal of some of the root system and pruning the tree.
Concern expressed by the Commission over this opinion includes the fact that the
pole may be so distant from the reference tree that it is not able to be adequately
screened by that tree. Staff recently met with an arborist from a local company
regularly involved in the review of these types of applications. The arborist
confirmed that the pole should not be located in the drip line. He also commented
that some trees have relatively narrow drip lines. In summary, he suggested that
the pole should be 25 feet from the tree trunk or just OUTSIDE the tree drip line,
whichever is greater. Staff would like to implement that advice with our personal
wireless providers and eventually clarify the measurement with a zoning text
amendment. This would then be a revision to the prior Zoning Administrator's
advisory opinion.
B. Amendments to Facilities with Older Special Use Permits
Many facilities were approved by Special Use Permit prior to the adoption of the
Wireless Policy or Ordinance regulations for Wireless facilities. Prior to the
Wireless Policy, wood poles were frequently required as a condition of Special
Use Permit approval. As a result of the research involved in the Wireless Policy,
wood poles are not necessary to limit visibility. These older facilities would
qualify as Tier II facilities under the current Ordinance.
Due to age, pests, and decay, some of these wood poles are in need of
replacement. If these had been approved as Tier II facilities they could be
replaced with administrative review. However, because they were approved with
a Special Use Permit, they must have additional review by the Planning
Commission(as Tier II) applications in order to replace the wood poles. Staff
suggests that the Tier II public process is unnecessary in the case of an existing
pole proposed to be replaced with the same height and same equipment. Does the
Commission support an amendment to allow the administrative approval of the
replacement of wood poles previously approved by Special Use Permit?
C. Notice to Neighbors for Balloon Tests
The Commission and a Board member has voiced concern about the balloon tests
that are conducted for each site. A Board member has suggested that we should
notify more than just the directly adjacent owners of an upcoming balloon test due
to the potential impact of these facilities to more than the immediate neighbors.
Staff would appreciate additional comment from the Commission in order to
improve the balloon tests. Staff particularly would like to know the following:
14
1) Should the Commission be notified so they can attend the
balloon test?
2) Should notice to the public about balloon tests be wider than
adjacent owners? Staff will add three comments for the
Commission to consider about a wider notice area: a) a similar
argument could potentially be made of the widespread or offsite
impact additional types of applications. Should this be
considered more comprehensively? b) because all of our public
notice follows legal requirements defining who qualifies as an
adjacent owner, it may be more difficult to administer a unique
notice requirement for only one type of application and c) how
far do you go in a wider notice? It may be difficult to define this
as a one-size-fits all, although any other definition which varies
depending on circumstances is much more time consuming and
liable to have errors.
D. Disturbance of Critical Slopes
Many wireless facility sites propose disturbance of critical slopes. Because we do
not ask applicants to consider other sites on the property, as a matter of policy and
ordinance—it becomes difficult to address certain criteria for critical slopes
disturbance. With a recent wireless special permit proposal involving critical
slopes disturbance, staff was asked whether other sites on the property exist that
do not involve critical slopes disturbance. Should different criteria be applied to
the review of critical slopes disturbance related to personal wireless facilities to
avoid this conflict with the policy and ordinance?
Attachments
A—Wireless Policy(contained on CD)
B—Chapter 18, Section 5.1.40 of the Code of Albemarle
C—Chapter 21 of the Land Use Law Handbook. (prepared by the Albemarle County
Attorney's Office)
15
ATTACHMENT B
Sec. 5.1.40 PERSONAL WIRELESS SERVICE FACILITIES
(Amended 10-13-04)
The purpose of this section 5.1.40 is to implement the personal wireless service facilities
policy, adopted as part of the comprehensive plan. Each personal wireless service facility
(hereinafter"facility") shall be subject to following, as applicable:
a.Application for approval: Each request for approval of a facility shall include the
following information:
1. A completed application form, signed by the parcel owner, the parcel owner's
agent or the contract purchaser, and the proposed facility's owner. If the owner's
agent signs the application, he shall also submit written evidence of the existence
and scope of the agency. If the contract purchaser signs the application, he shall
also submit the owner's written consent to the application.
2. A recorded plat or recorded boundary survey of the parcel on which the facility
will be located; provided, if neither a recorded plat nor boundary survey exists, a
copy of the legal description of the parcel and the Albemarle County Circuit
Court deed book and page number.
3. The identity of the owner of the parcel and, if the owner is other than a real
person, the complete legal name of the entity, a description of the type of entity,
and written documentation that the person signing on behalf of the entity is
authorized to do so.
4. Except where the facility will be located entirely within an existing structure, a
scaled plan and a scaled elevation view and other supporting drawings,
calculations, and other documentation required by the agent, signed and sealed by
an appropriate licensed professional. The plans and supporting drawings,
calculations and documentation shall show:
(a) The location and dimensions of all existing and proposed
improvements on the parcel including access roads and structures, the
location and dimensions of significant natural features, and the maximum
height above ground of the facility (also identified in height above sea
level).
(b) The benchmarks and datum used for elevations. The datum shall
coincide with the Virginia State Plane Coordinate System, South Zone,
North American Datum of 1983 (NAD83), United States Survey Feet
16
.
North American Vertical Datum of 1988 (NAVD88), and the benchmarks
shall be acceptable to the county engineer.
(c) The design of the facility, including the specific type of support
structure and the design, type, location, size, height and configuration of
all existing and proposed antennas and other equipment.
(d) Identification of each paint color on the facility, by manufacturer color
name and color number. A paint chip or sample shall be provided for each
color.
(e) Except where the facility would be attached to an existing structure,
the topography within two thousand(2,000) feet of the proposed facility,
in contour intervals not to exceed ten(10) feet for all lands within
Albemarle County and, in contour intervals shown on United States
Geological Survey topographic survey maps or the best topographic data
available, for lands not within Albemarle County.
(f) The height, caliper and species of all trees where the dripline is located
within fifty (50) feet of the facility that are relied upon to establish the
proposed height and/or screening of the monopole. All trees that will be
adversely impacted or removed during installation or maintenance of the
facility shall be noted, regardless of their distances to the facility.
(g) All existing and proposed setbacks, parking, fencing and landscaping.
(h) The location of all existing accessways and the location and design of
all proposed accessways.
(i) Except where the facility would be attached to an existing structure,
residential and commercial structures, and residential and rural areas
zoning district boundaries.
(j) If the proposed tower will be taller than one hundred fifty(150) feet,
the proximity of the facility to commercial and private airports.
5. Photographs, where possible, or perspective drawings of the facility site and all
existing facilities within two hundred (200) feet of the site, if any, and the area
surrounding the site.
6. For any proposed monopole or tower, photographs taken of a balloon test,
which shall be conducted as follows:
(a) The applicant shall contact the agent within ten (10) days after the date
the application was submitted to schedule a date and time when the
balloon test will be conducted. The test shall be conducted within forty
17
(40) days after the date the application was submitted, and the applicant
shall provide the agent with at least seven (7) days prior notice; provided
that this deadline may be extended due to inclement weather or by the
agreement of the applicant and the agent.
(b) Prior to the balloon test, the locations of the access road, the lease area,
the tower site, the reference tree and the tallest tree within twenty five (25)
feet of the proposed monopole shall be surveyed and staked or flagged in
the field.
(c) The test shall consist of raising one or more balloons from the site to a
height equal to the proposed facility.
(d) The balloons shall be of a color or material that provides maximum
visibility.
(e) The photographs of the balloon test shall be taken from the nearest
residence and from appropriate locations on abutting properties, along
each publicly used road from which the balloon is visible, and other
properties and locations as deemed appropriate by the agent. The applicant
shall identify the camera type, film size, and focal length of the lens for
each photograph.
7. If antennas are proposed to be added to an existing structure, all existing
antennas and other equipment on the structure, as well as all ground equipment,
shall be identified by owner, type and size. The method(s)by which the antennas
will be attached to the mounting structure shall be depicted.
8. If the proposed facility would be located on lands subject to a conservation
easement or an open space easement, a copy of the recorded deed of easement and
the express written consent of all easement holders to the proposed facility.
b. Exemption from regulations otherwise applicable: Except as otherwise exempted in
this paragraph, each facility shall be subject to all applicable regulations in this chapter.
1. Notwithstanding section 4.2.3.1 of this chapter, a facility may be located in an
area on a lot or parcel other than a building site.
2. Notwithstanding section 4.10.3.1(b) of this chapter, the agent may authorize a
facility to be located closer in distance than the height of the tower or other
mounting structure to any lot line if the applicant obtains an easement or other
recordable document showing agreement between the lot owners, acceptable to
the county attorney addressing development on the part of the abutting parcel
sharing the common lot line that is within the facility's fall zone (e.g., the setback
of an eighty (80) foot-tall facility could be reduced to thirty(30) feet if an
easement is established prohibiting development on the abutting lot within a fifty
18
(50) foot fall zone). If the right-of-way for a public street is within the fall zone,
the Virginia Department of Transportation shall be included in the staff review, in
lieu of recording an easement or other document.
3. The area and bulk regulations or minimum yard requirements of the zoning
district in which the facility will be located shall not apply.
4. Notwithstanding section 4.11 of this chapter, a facility may be located in a
required yard.
5. Notwithstanding section 32.2 of this chapter, a site plan shall not be required
for a facility, but the facility shall be subject to the requirements of section 32 and
the applicant shall submit all schematics, plans, calculations, drawings and other
information required by the agent to determine whether the facility complies with
section 32. In making this determination, the agent may impose reasonable
conditions authorized by section 32 in order to assure compliance.
c. Tier I facilities. Each Tier I facility may be established upon approval of an application
satisfying the requirements of subsection 5.1.40(a) by the agent, demonstrating that the
facility will be installed and operated in compliance with all applicable provisions of this
chapter, satisfying all conditions of the architectural review board, and meeting the
following conditions:
1. The facility shall comply with subsection 5.1.40(b).
2. The facility shall be designed, constructed and maintained as follows: (i) guy
wires shall not be permitted; (ii) outdoor lighting for the facility shall be permitted
only during maintenance periods; regardless of the lumens emitted, each outdoor
luminaire shall be fully shielded as required by section 4.17 of this chapter; (iii)
any equipment cabinet not located within the existing structure shall be screened
from all lot lines either by terrain, existing structures, existing vegetation, or by
added vegetation approved by the county's landscape planner; (iv) a whip antenna
less than six (6) inches in diameter may exceed the height of the existing
structure; (v) a grounding rod, whose height shall not exceed two (2) feet and
whose width shall not exceed one (1) inch in diameter at the base and tapering to
a point, may be installed at the top of facility or the structure; and (vi) within one
month after the completion of the installation of the facility, the applicant shall
provide a statement to the agent certifying that the height of all components of the
facility complies with this regulation.
3. Equipment shall be attached to the exterior of a structure only as follows: (i)the
total number of arrays of antennas attached to the existing structure shall not
exceed three (3), and each antenna proposed to be attached under the pending
application shall not exceed the size shown on the application, which size shall
not exceed one thousand one hundred fifty two (1152) square inches; (ii)no
antenna shall project from the structure beyond the minimum required by the
19
mounting equipment, and in no case shall any point on the face of an antenna
project more than twelve (12) inches from the existing structure; and (iii) each
antenna and associated equipment shall be a color that matches the existing
structure. For purposes of this section, all types of antennas and dishes regardless
of their use shall be counted toward the limit of three arrays.
4. Prior to issuance of a building permit, the applicant shall submit a tree
conservation plan prepared by a certified arborist. The plan shall be submitted to
the agent for review and approval to assure that all applicable requirements have
been satisfied. The plan shall specify tree protection methods and procedures, and
identify all existing trees to be removed on the parcel for the installation,
operation and maintenance of the facility. Except for the tree removal expressly
authorized by the agent, the applicant shall not remove existing trees within the
lease area or within one hundred (100) feet in all directions surrounding the lease
area of any part of the facility. In addition, the agent may identify additional trees
or lands up to two hundred (200) feet from the lease area to be included in the
plan.
5. The installation, operation and maintenance of the facility shall be conducted in
accordance with the tree conservation plan. Dead and dying trees identified by the
arborist's report may be removed if so noted on the tree conservation plan. If tree
removal is later requested that was not approved by the agent when the tree
conservation plan was approved, the applicant shall submit an amended plan. The
agent may approve the amended plan if the proposed tree removal will not
adversely affect the visibility of the facility from any location off of the parcel.
The agent may impose reasonable conditions to assure that the purposes of this
paragraph are achieved.
6. The 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 agent determines at any time that surety is required to guarantee that the
facility will be removed as required, the agent may require that the parcel owner
or the owner of the facility submit a certified check, a bond with surety, or a letter
of credit, in an amount sufficient for, and conditioned upon, the removal of the
facility. The type and form of the surety guarantee shall be to the satisfaction of
the agent and the county attorney. In determining whether surety should be
required, the agent shall consider the following: (i)the annual report states that
the tower or pole is no longer being used for personal wireless service facilities;
(ii)the annual report was not filed; (iii) there is a change in technology that makes
it likely that tower or pole will be unnecessary in the near future; (iv)the
permittee fails to comply with applicable regulations or conditions; (v)the
permittee fails to timely remove another tower or pole within the county; and (vi)
whenever otherwise deemed necessary by the agent.
7. The owner of the facility shall submit a report to the agent by no earlier than
May or and no later than July 1 of each year. The report shall identify each user of
20
the existing structure, and include a drawing,photograph or other illustration
identifying which equipment is owned and/or operated by each personal wireless
service provider. Multiple users on a single tower or other mounting structure
may submit a single report, provided that the report includes a statement signed
by a representative from each user acquiescing in the report.
8. No slopes associated with the installation of the facility and accessory uses
shall be created that are steeper than 2:1 unless retaining walls, revetments, or
other stabilization measures acceptable to the county engineer are employed.
9. Any equipment cabinet not located within an existing building shall be fenced
only with the approval of the agent upon finding that the fence: (i) would protect
the facility from trespass in areas of high volumes of vehicular or pedestrian
traffic or, in the rural areas, to protect the facility from livestock or wildlife; (ii)
would not be detrimental to the character of the area; and (iii) would not be
detrimental to the public health, safety or general welfare.
d. Tier II facilities. Each Tier II facility may be established upon commission approval of
an application satisfying the requirements of subsection 5.1.40(a) and demonstrating that
the facility will be installed and operated in compliance with all applicable provisions of
this chapter, criteria(1) through (8) below, and satisfying all conditions of the
architectural review board. The commission shall act on each application within the time
periods established in section 32.4.2.6. The commission shall approve each application,
without conditions, once it determines that all of these requirements have been satisfied.
If the commission denies an application, it shall identify which requirements were not
satisfied and inform the applicant what needs to be done to satisfy each requirement.
1. The facility shall comply with subsection 5.1.40(b) and subsection 5.1.40(c)(2)
through(9).
2. The site shall provide adequate opportunities for screening and the facility shall
be sited to minimize its visibility from adjacent parcels and streets, regardless of
their distance from the facility. If the facility would be visible from a state scenic
river or a national park or national forest, regardless of whether the site is adjacent
thereto, the facility also shall be sited to minimize its visibility from such river,
park or forest. If the facility would be located on lands subject to a conservation
easement or an open space easement, or adjacent to a conservation easement or
open space easement, the facility shall be sited so that it is not visible from any
resources specifically identified for protection in the deed of easement.
3. The facility shall not adversely impact resources identified in the county's open
space plan.
4. The facility shall not be located so that it and three (3) or more existing or
approved personal wireless service facilities would be within an area comprised
21
of a circle centered anywhere on the ground having a radius of two hundred(200)
feet.
5. The maximum base diameter of the monopole shall be thirty(30) inches and
the maximum diameter at the top of the monopole shall be eighteen (18) inches.
6. The top of the monopole, measured in elevation above mean sea level, shall not
exceed the height approved by the commission. The approved height shall not be
more than seven (7) feet taller than the tallest tree within twenty-five (25) feet of
the monopole, and shall include any base, foundation or grading that raises the
pole above the pre-existing natural ground elevation; provided that the height
approved by the commission may be up to ten (10) feet taller than the tallest tree
if the owner of the facility demonstrates to the satisfaction of the commission that
there is not a material difference in the visibility of the monopole at the proposed
height, rather than at a height seven (7) feet taller than the tallest tree; and there is
not a material difference in adverse impacts to resources identified in the county's
open space plan caused by the monopole at the proposed height, rather than at a
height seven (7) feet taller than the tallest tree. The applicant may appeal the
commissioner's denial of a modification to the board of supervisors as provided in
subsection 5.1.40(d)(12).
7. Each wood monopole shall be a dark brown natural wood color; each metal or
concrete monopole shall be painted a brown wood color to blend 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 cabinet, and the
concrete pad shall also be a color that closely matches that of the monopole,
provided that the ground equipment and the concrete pad need not be of such a
color if they are enclosed within or behind an approved structure, façade or
fencing that: (i) is a color that closely matches that of the monopole; (ii) is
consistent with the character of the area; and (iii) makes the ground equipment
and concrete pad invisible at any time of year from any other parcel or a public or
private street.
8. Each wood monopole shall be constructed so that all cables, wiring and similar
attachments that run vertically from the ground equipment to the antennas are
placed on the pole to face the interior of the property and away from public view,
as determined by the agent. Metal monopoles shall be constructed so that vertical
cables, wiring and similar attachments are contained within the monopole's
structure.
9. The following shall be submitted with the building permit application: (i)
certification by a registered surveyor stating the height of the reference tree that is
used to determine the permissible height of the monopole; and (ii) a final revised
set of plans for the construction of the facility. The agent shall review the
22
surveyor's certificate and the plans to assure that all applicable requirements have
been satisfied.
10. The following shall be submitted to the agent after installation of the
monopole is completed and prior to issuance of a certificate of occupancy: (i)
certification by a registered surveyor stating the height of the monopole, measured
both in feet above ground level and in elevation above mean sea level, using the
benchmarks or reference datum identified in the application; and (ii) certification
stating that the lightning rod's height does not exceed two (2) feet above the top
of the monopole and width does not exceed a diameter of one (1) inch.
11. Notice of the commission's consideration of an application for a Tier II
facility shall be sent by the agent to the owner of each lot abutting the lot on
which the proposed facility will be located. The notice shall describe the nature of
the facility, its proposed location on the lot, its proposed height, the appropriate
county office where the complete Tier II facility application may be viewed, and
the date, time and location where the commission will consider the application.
The notice shall be mailed by first class mail or hand delivered at least ten(10)
days prior to the commission meeting. Mailed notice shall be mailed to the last
known address of the owner, and mailing the notice to the address shown on the
current real estate tax assessment records of the county shall be deemed
compliance with this requirement. The failure of an owner to receive the notice as
provided herein shall not affect the validity of an approved Tier II facility and
shall not be the basis for an appeal.
12. The board of supervisors may consider an application for a Tier II facility
only upon an appeal of the denial of the application by the commission. An appeal
shall be submitted in writing in the office of the agent within ten (10) calendar
days after the date of the denial by the commission. In considering an appeal, the
board may affirm, reverse, or modify in whole or in part, the decision of the
commission, and its decision shall be based upon the requirements delineated in
this subsection(d).
13. Upon the written request of the applicant, the agent may authorize the height
of an existing Tier II facility's monopole to be increased above its originally
approved height upon finding that the reference tree has grown to a height that is
relative to the requested increase in height of the monopole. The application shall
include a certified survey of the reference tree's new height, as well as the heights
of other trees to be considered by the agent. The agent shall not grant such a
request if the increase in height would cause the facility to be skylighted or would
increase the extent to which it is skylighted.
e. Tier III facilities. Each Tier III facility may be established upon approval of a special
use permit issued pursuant to section 31.2.4 of this chapter, initiated upon an application
satisfying the requirements of subsection 5.1.40(a) and section 31.2.4, and it shall be
installed and operated in compliance with all applicable provisions of this chapter and the
23
following: 1. The facility shall comply with subsection 5.1.40(b), subsection 5.1.40(c)(2)
through (9), and subsection 5.1.40(d)(2), (3), (6) and (7), unless modified by the board of
supervisors during special use permit review. 2. The facility shall comply with all
conditions of approval of the special use permit.
(§ 5.1.40, Ord. 01-18(9), 10-17-01; Ord. 04-18(2), 10-13-04)
24
Chapter 21
Wireless Facilities:
Satisfying the Requirements of 47 U.S.C. § 332(c)(7)
21-1 Introduction
This chapter provides a summary of the case law applying 47 U.S.C. § 332(c)(7)("section
332(c)(7)"), which was adopted as part of the Telecommunications Act of 1996 ("Act").
Numerous federal appellate court decisions issued since 1998 have clarified the rights and
obligations of wireless providers and localities under section 332(c)(7). Understanding these rights and
obligations is important to assure that the County satisfies the requirements of section 332(c)(7).
21-2 The purposes of the Act
Section 332(c)(7)has been described as a deliberate compromise between two competing goals of
the Act—to facilitate nationally the growth of wireless telephone service and to maintain substantial local
control over the siting of towers. Town of Amherst v. Omnipoint Communications Enterprises, 173 F.3d 9
(1'Cir. 1999); 360 Communications Co. v. Board of Supervisors of Albemarle County, 211 F.3d 79(4`h
Cir. 2000)("While Congress sought to limit the ability of state and local governments to frustrate the
Act's national purpose of facilitating the growth of wireless telecommunications,Congress also intended
to preserve state and local control over the siting of towers and other facilities that provide wireless
services").
This compromise preserves the County's lawful exercise of its zoning authority,even in the face
of claims that an individual zoning decision thwarts the Act's goal of increased competition through the
rapid deployment of the wireless infrastructure.See, Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630(2"
Cir. 1999).
21-3 The Act's preservation of the County's zoning authority
Congress left most of the substantive authority to approve the location of wireless facilities in the
hands of state and local governments.Aegerter v. City of Delafield, 174 F.3d 886(7th Cir. 1999). Section
332(c)(7)(A)of the Act states:
Except as provided in this paragraph, nothing in this chapter shall limit or affect the
authority of a State or local government or instrumentality thereof over decisions
regarding the placement, construction, and modification of personal wireless facilities.
By this language, Congress intended to prevent the Federal Communications Commission from
preempting state and local land use decisions and to preserve the authority of state and local governments
over zoning and land use matters.H.R. Conf. Rep. No. 104-458, 104th Congress, 2""Sess. 208 (1996).
The Act's preservation of local zoning authority over the placement of wireless facilities,while imposing
some limitations on that authority, reflects Congress' desire to assure the introduction of competitive
wireless services while at the same time preserving local control over the physical facilities themselves.
AT&T Wireless PCS, Inc. v. City Council of City of Virginia Beach, 155 F.3d 423 (4`h Cir. 1998).
Moreover, "mandating approval of all wireless facilities would act as a disincentive for wireless service
providers to develop and deploy new technology that will provide better transmission and repetition with
less intrusive towers,effectively undermining the [Act's] goal of increased innovation."Sprint Spectrum,
L.P. v. Willoth, 176 F.3d 630(2"Cir. 1999).
Local land use policies and regulations often may clash with a wireless provider's plans to
21-1 26
Attachment C
develop its infrastructure. Nevertheless,the County's zoning authority will prevail except in the most
limited circumstances, provided that the limitations imposed on that authority by section 332(c)(7)(B) are
not violated. See,Town of Amherst v. Omnipoint Communications Enterprises, 173 F.3d 9(1' Cir. 1999)
("on one side are the opportunity for the carrier to save costs, pay more to the town, and reduce the
number of towers; on the other are more costs, more towers, but possibly less offensive sites and
somewhat shorter towers. . . [S]ubject to an outer limit, such choices are just what Congress has reserved
to the town");Sprint Spectrum v. Board of County Commissioners of Jefferson County, 59 F.Supp.2d
1101 (D.Colo. 1999).
Because section 332(c)(7)does not affect or encroach upon the substantive standards to be
applied under established principles of state and local law, Cellular Telephone Company v. Town of
Oyster Bay, 166 F.3d 490 (2d Cir. 1999), the County retains its authority to:
• Determine the appropriate height, location and bulk of wireless facilities. Virginia Code§ 15.2-
2280(2).
• Allow wireless facilities, by special use permit, subject to suitable regulations and safeguards.
Virginia Code§ 15.2-2286(A)(3).
• Deny applications for special use permits if the requisite findings for the granting of a permit
cannot be made.See, e.g., County of Lancaster v. Cowardin, 239 Va. 522 (1990).
• Deny applications for special use permits if the proposed uses are inconsistent with the
comprehensive plan.National Memorial Park, Inc. v. Board of Zoning Appeals of Fairfax
County, 232 Va. 89(1986).
• Prohibit uses, including wireless facilities, within certain zoning districts.Resource Conservation
Management, Inc. v. Board of Supervisors of Prince William County,238 Va. 15 (1989).
Of course,the exercise of this authority must otherwise comply with state and County land use
laws, and may not violate the limitations set forth in section 332(c)(7)(B). Moreover, section
332(c)(7)(A)does"not alter the FCC's general authority over radio telecommunications granted by
earlier communications legislation."Southwestern Bell Wireless, Inc. v. Johnson County Board of County
Commissioners, 199 F.3d 1185 (10th Cir. 1999)(rejecting the assertion that preserving local zoning
authority allows local regulation of radio frequency interference, and holding that such regulation is
preempted by federal law and does not violate the Tenth Amendment).
"Some may disagree with Congress's decision to leave so much authority in the hands of state
and local governments to affect the placement of the physical infrastructure of an important part of the
nation's evolving telecommunications network. But that is what it did when it passed the
Telecommunications Act of 1996 . . ."Aegerter, supra. "The statute's balance of local autonomy subject
to federal limitations does not offer a single `cookie cutter' solution for diverse local situations . .
Congress conceived that this course would produce(albeit at some cost and delay for the carriers)
individual solutions best adapted to the needs and desires of particular communities."Amherst, supra.
21-4 The Act's limitation on the County's zoning authority: the County's regulations may not
prohibit or have the effect of prohibiting wireless service
Section 332(c)(7)(B)(i)(lI) forbids regulations that prohibit or have the effect of prohibiting the
provision of personal wireless services:
The regulation of the placement,construction, and modification of personal wireless service
facilities by any State or local government or instrumentality thereof. . . shall not
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prohibit or have the effect of prohibiting the provision of personal wireless services.
As a general rule,the prohibition clause applies only to blanket prohibitions or general bans or
policies, rather than individual zoning decisions.AT&T Wireless PCS, Inc. v. City Council of City of
Virginia Beach, 155 F.3d 423 (4th Cir. 1998). If the rule was otherwise, local zoning authority would be
effectively nullified by mandating approval of all,or nearly all, applications. Virginia Beach, supra.
Nevertheless, an individual zoning decision may have the effect of prohibiting services. Other than those
cases dealing with moratoria, such as Sprint Spectrum L.P. v. City of Medina, 924 F.Supp. 1036
(W.D.Wash. 1996)(moratorium did not violate prohibition clause)and Sprint Spectrum L.P. v. Jefferson
County, 968 F.Supp. 1457(N.D.Ala. 1997)(moratorium violated prohibition clause), most if not all of the
cases considering the prohibition clause have been based on the claim that the denial of a single wireless
facility had the effect of prohibiting service.
The following paragraphs review the principles that have emerged from those cases to define the
parameters of the prohibition clause.
21-4.1 The court will review a prohibition claim de novo
The determination as to whether a locality has complied with the prohibition clause is to
be made de novo by a reviewing court that will not necessarily be limited to the record compiled by the
state or local authority. See, APT Pittsburgh Limited Partnership v. Penn Township, 196 F.3d 469(3`d Cir.
1999).
21-4.2 The wireless provider has the burden of proof
A wireless provider bears a heavy burden of proof to establish that the County's regulation or
decision has the effect of prohibiting service. 360 Communications Co. v. Board of Supervisors of
Albemarle County, 211 F.3d 79(4th Cir. 2000); Town of Amherst v. Omnipoint Communications
Enterprises, 173 F.3d 9 (151 Cir. 1999).
21-4.3 The showing required to establish a violation of the prohibition clause
Although the prohibition clause instructs that siting decisions may not be employed to prohibit
wireless service, it does not mean that the case-by-case denial of permits for particular sites amount to the
denial of wireless services. 360 Communications Co. v. Board of Supervisors of Albemarle County, 211
F.3d 79(4th Cir. 2000).
The simple fact of denial with respect to a particular site is not enough to establish a prohibition
of wireless service.Albemarle County, supra. "[T]here must be something more,taken from the
circumstances of the particular application or from the procedure for processing that application, that
produces the `effect' of prohibiting wireless services."Albemarle County, supra. Thus, the wireless
service provider must bring additional proof to"demonstrate that the denial is representative of a broader
policy or circumstance that precludes the provision of wireless service."APT Pittsburgh Limited
Partnership v. Penn Township, 196 F.3d 469(3`d Cir. 1999).
This proof may come in various forms. The wireless provider may show that the County has
adopted"[p]olicies that do not explicitly ban new service but do, when applied on a case-by-case basis,
guarantee the rejection of every application."AT&T Wireless PCS, Inc. v. City Council of City of Virginia
Beach, 155 F.3d 423 (4th Cir. 1998). This ground provides protection for wireless providers who are
unable to enter a new market,but are unable to show unreasonable discrimination by a locality. Id. The
wireless provider might also show that the County has indicated that repeated individual applications will
be denied because of a generalized hostility to wireless services.Albemarle County, supra;Amherst,
supra(for example,"in denying an individual permit,the town zoning authority announces that no towers
will ever be allowed or sets out criteria that no one could ever meet").
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In the end however,the wireless provider must show that the denial of a permit for a particular
site has the effect of prohibiting service,taken from the circumstances surrounding the application.
Albemarle County, supra(rejecting the two-part test adopted by the Second and Third Circuits, under
which the denial of a single permit for a site that is the least intrusive means to close a significant gap in
service would amount to a prohibition of wireless services);see, e.g., Sprint Spectrum, L.P. v. Willoth,
176 F.3d 630 (2d Cir. 1999): Cellular Telephone Company v. Zoning Board of Adjustment of the Borough
of Ho-Ho-Kus, 197 F.3d 64 (3rd Cir. 1999);Penn Township, supra).
The prior approval of wireless facilities by the locality is affirmative evidence that the denial of a
permit for a particular site does not amount to a general prohibition of service.Albemarle County, supra.
21-4.4 The County does not necessarily violate the prohibition clause when it applies its
land use regulations to regulate the location or size of a wireless facility,or to even
prohibit wireless facilities in certain areas
The prohibition clause does not divest the County of its discretion, under its site-specific review,
to determine whether certain uses are detrimental to a zoning area.AT&T Wireless PCS, Inc. v. Winston-
Salem Zoning Board of Adjustment, 172 F.3d 307(4th Cir. 1999)(denial of tower in residential area on lot
on which historic building located supported by substantial evidence); Omnipoint Communications v. City
of Scranton, 36 F.Supp.2d 222(M.D. Pa. 1999)(regulations restricting the locations on which antennas
may be placed is not a general ban, and are permissible under the Act,particularly where, as here, the
regulations allowed the zoning board to conduct a case-by-case analysis to determine whether a variance
was warranted).
Accordingly,the prohibition clause does not require that the County allow wireless facilities
wherever the wireless provider desires,or at the height the wireless provider desires. Town of Amherst v.
Omnipoint Communications Enterprises, 173 F.3d 9(1" Cir. 1999);Aegerter v. City of Delafield, 174
F.3d 886(7h Cir. 1999)(the prohibition clause does not mean"that every municipality must have towers
wherever anyone wants to put them");AT& T Wireless Services of Florida, Inc. v. Orange County, 23
F.Supp.2d 1355 (M.D.Fla. 1998); BellSouth Mobility, Inc. v. Parish of Plaquemines, 40 F.Supp.2d 372
(E.D. La. 1999)(prohibition clause does not"divest local authorities of power to prohibit facilities in
certain locales if supported by substantial evidence"). This rule applies even where the wireless provider
claims that, in its business judgment, a tower is necessary to compete effectively with other
telecommunications providers,Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630(2d Cir. 1999), or has
established a necessity for the proposed site where alternative sites may exist. PrimeCo Personal
Communications, L.P. v. Village of Fox Lake, 35 F.Supp.2d 643 (N.D. Ill. 1999).
21-4.5 The County does not necessarily violate the prohibition clause when it denies an
application that leaves a gap in coverage or inadequate capacity
A wireless provider is going to seek to erect facilities in those areas where it determines that its
existing coverage or capacity needs to be improved. The County does not necessarily violate the
prohibition clause when it denies these facilities. This rule is best explained by laying out several
principles:
Wireless providers are not required, nor guaranteed the right,to provide seamless
coverage
The prohibition clause is not violated simply because the County denies a facility at a single site
claimed by the wireless service provider to be necessary to eliminate a gap in its coverage. Omnipoint
Communications v. City of Scranton, 36 F.Supp.2d 222(M.D. Pa. 1999). Likewise,the prohibition clause
is not violated simply because a denial may frustrate a wireless provider's coverage goals.Sprint
Spectrum v. Board of County Commissioners of Jefferson County, 59 F.Supp.2d 1101 (D.Colo. 1999).
2 1-4
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This is so because the prohibition clause does not guarantee wireless providers the right to
provide seamless coverage in disregard of local zoning authority. 360 Communications Co. v. Board of
Supervisors of Albemarle County,211 F.3d 79(4`h Cir. 2000) ("The Act obviously cannot require that
( wireless services provide 100%coverage"). Moreover,the regulations implementing the Act do not
require that wireless service providers provide service to all of a geographical area for cellular service, or
all of a customer base for PCS.Albemarle County, supra. (discussing cellular).
The prohibition clause pertains to wireless service,not wireless facilities,and
therefore is designed to protect users, not wireless providers
The prohibition clause bars County regulation"that prohibits or has the effect of prohibiting
personal wireless services, not the facilities that provide those services." Cellular Telephone Company v.
Zoning Board of Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d 64(3`d Cir. 1999). This means that
the doctrine prohibiting gaps is designed to protect users, not the wireless service providers.Airtouch
Cellular v. City of El Cajon, 83 F.Supp.2d 1158 (S.D.Cal. 2000).
The existence of wireless service in an area precludes a claim that the denial of a
wireless facility has the effect of prohibiting service
The existence of wireless service in an area by any wireless service provider should defeat a
claim that a denial of a single wireless facility has the effect of prohibiting wireless service.Albemarle
County, supra("if service is already provided in an area, it would be difficult to violate [the prohibition
clause]which addresses only a prohibition of the provision of service");APT Pittsburgh Limited
Partnership v. Penn Township, 196 F.3d 469(3`d Cir. 1999)(to establish a significant gap in coverage,
"the provider must present evidence that the area the new facility will serve is not already served by
another provider"); Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630(2d Cir. 1999)("once an area is
sufficiently serviced by a wireless service provider,the right to deny applications becomes broader:
[Localities] may deny subsequent applications without thereby violating [the prohibition clause]"); El
Cajon, supra("[s]ince the area at issue in this case is already being served by other providers,the City's
decision does not `have the effect of prohibiting the provision of personal wireless services").
For example,the denial of a facility that would leave most of a city without digital (PCS) service
is not a prohibition of service where analog(cellular)service is available. Iowa Wireless Services v. City
of Moline, 29 F.Supp.2d 915 (C.D.I11. 1998). On the other hand,a locality does not satisfy the prohibition
clause merely"by ensuring that personal wireless services are available somewhere within the [locality],
even if they are not available throughout."Ho-Ho-Kus, supra. With these principles in mind,the
scatterplots(the statistical models depicting existing and proposed coverage)that used to be submitted by
wireless providers to show gaps in their coverage are irrelevant to the prohibition clause.
If there is no existing service and no feasible alternative site or design,the denial of
a wireless facility that leaves a significant Qap in coverage may violate the
prohibition clause
Whether the denial of a single wireless facility violates the prohibition clause is"best . . .
answered through the case-by-case analysis that the Act anticipates."Albemarle County, supra. The
relevant factors to consider when conducting such an analysis include the existing level of service in the
area and the number of customers in the area to be served.Ho-Ho-Kus, supra("We think it matters a
great deal,however,whether the `gap' in service merely covers a small residential cul-de-sac or whether
it straddles a significant commuter highway or commuter railway [because] a gap that covers a well-
traveled road could affect large numbers of travelers . . . and the total disruption could be quite
significant").
A locality was held to have violated the prohibition clause where: (1)the town's zoning
regulations allowed wireless facilities to be located on only one parcel in order to provide service to the
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northwest portion of the town and an adjoining heavily traveled thoroughfare; (2)there was no existing
service in the area; and,(3)that one parcel was unavailable. Town of Lincoln, supra.
21-4.6 The County does not violate the prohibition clause when it approves or denies an
application that prevents the wireless provider from providing optimal service
It is quite understandable that a wireless provider would like to provide the best service possible.
However,the level of service desired by a wireless provider is typically not at the forefront of the
County's land use concerns when considering an application for a wireless facility.
The prohibition clause is not violated because a denial may prevent a wireless provider from
providing optimal service. Sprint Spectrum v. Board of County Commissioners of Jefferson County, 59
F.Supp.2d 1 1 0 1 (D.Colo. 1999)("Congress must have known that . . . such decisions would result from
allowing [localities] to consider matters other than the optimal end of service");Airtouch Cellular v. City
of El Cajon, 83 F.Supp.2d 1158 (S.D.Cal. 2000)(no violation of the prohibition clause if the carrier's
request is denied but it"may turn to alternative sites,even if those sites `may be less than optimal").
21-4.7 The County does not violate the prohibition clause when it denies an application,
even though the alternatives are more costly,complex,difficult to construct or will
provide a lower level of service than desired
"[C]onceptually, if wireless service could feasibly be provided from only one site, a denial of a
permit for a facility at that site could amount to a prohibition of wireless services." 360 Communications
Co. v. Board of Supervisors of Albemarle County,211 F.3d 79(4`h Cir. 2000). Such a hypothetical seems
unlikely in the real world.Albemarle County, supra. Thus,the prohibition clause analysis invariably
turns to whether there are alternative facility designs or locations available.
A wireless provider's selected site is likely to be the"site with the best coverage for the
least expense."Airtouch Cellular v. City of El Cajon, 83 F.Supp.2d 1158(S.D.Cal. 2000). A wireless
provider may not reject alternatives because"they present challenges and be less than ideal."El Cajon,
supra. The rejected alternatives must be"entirely unfeasible."El Cajon,supra. Thus,the County does
not violate the prohibition clause when it denies a permit for a particular site where the wireless service
provider claims that there are no alternatives at which it can provide a high level of wireless service at a
cost within or close to the industry wide norm for establishing new service,Albemarle County, supra, or
because possible alternative locations are too complex,require difficult construction or compel using a
different design.El Cajon, supra.
On the cost issue, it is recognized that facilities siting issues such as complying with local
zoning conditions are the"terms and conditions"of service,and complying with these terms and
conditions"necessarily entails the expending of significant financial capital."Mountain Solutions v. State
Corporation Commission of Kansas, 966 F.Supp. 1043 (D.Kan. 1997)(applying 47 U.S.C. § 332(c)(3)).
Thus, subject to an outer limit,the possible increased costs or the need to construct additional facilities in
order to comply with a locality's land use policies and regulations are a trade-off anticipated by the Act.
Town of Amherst v. Omnipoint Communications Enterprises, 173 F.3d 9(1S`Cir. 1999)(recognizing that
towers are "very expensive,often costing$500,000 or so each,"but finding that shorter and possibly
more towers constitute a feasible alternative); Cellco Partnership v. Russell, 187 F.3d 628(4`h Cir. 1999)
(unpublished; observing that ordinance provisions that may make the construction and maintenance of the
towers more difficult or costly do not,on their face,violate section 332(c)(7)).
21-5 The Act's limitation on the County's zoning authority: the decision of the County to deny a
request must be in writing and supported by substantial evidence contained in a written
record
Section 332(c)(7)(B)(iii)requires that a locality's decision to deny a request must be in writing
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and supported by substantial evidence:
Any decision by a State or local government or instrumentality thereof to deny a request
to place,construct, or modify personal wireless service facilities shall be in writing and
supported by substantial evidence contained in a written record.
This test applies to the County's application of its zoning requirements. Town of Amherst v. Omnipoint
Communications Enterprises, 173 F.3d 9(15`Cir. 1999); Omnipoint Corporation v. Zoning Hearing
Board of Pine Grove Township, 181 F.3d 403 (3rd Cir. 1999).
21-5.1 The decision must be in writing
The requirement that a decision be in writing is easily satisfied. A letter stamped with the word
"Denied,"or writing the letter"Denied"on the wireless provider's application, satisfies the requirement.
AT&T Wireless PCS, Inc. v. City Council of City of Virginia Beach, 155 F.3d 423 (4th Cir. 1998);AT&T
Wireless PCS, Inc. v. Winston-Salem Zoning Board of Adjustment, 172 F.3d 307(4th Cir. 1999). There is
no need to for a locality to issue a written rationale with factual and legal conclusions. Virginia Beach,
supra; Winston-Salem Zoning Board of Adjustment, supra.
If the County elects to adopt a more formal written opinion to support its decision, it need not be
adopted at the time of the decision. Winston-Salem Zoning Board of Adjustment,supra(rejecting any
assertion that such a practice is pretextual).
21-5.2 The decision must be supported by substantial evidence
Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to
support a conclusion.AT&T Wireless PCS, Inc. v. City Council of City of Virginia Beach, 155 F.3d 423
(4th Cir. 1998); 360 Communications Co. v. Board of Supervisors of Albemarle County, 211 F.3d 79(4`h
Cir. 2000). The test is deferential to the Board of Supervisor's decision. Cellular Telephone Company v.
Town of Oyster Bay, 166 F.3d 490(2"Cir. 1999).
A decision is supported by substantial evidence if there is more than a mere scintilla of relevant
evidence,even though it may be less than a preponderance. Virginia Beach, supra. The substantial
evidence standard must be applied using common sense standards of reasonableness.Airtouch Cellular v.
City of El Cajon, 83 F.Supp.2d 1158 (S.D.Cal. 2000). A court is not bound "to accept as substantial
evidence impossible, incredible, unfeasible, or implausible testimony, even if it was not refuted."El
Cajon, supra. When applying the substantial evidence test,the"`reasonable mind' of a member of the
[Board of Supervisors] is not necessarily the same as the `reasonable mind' of a bureaucrat, and one
should keep the distinction in mind when attempting to impose the `substantial evidence' standard onto
the world of legislative decisions." Virginia Beach, supra;Albemarle County, supra.
The reviewing court neither reweighs the Board's decision, nor substitutes its decision for the
Board's. Virginia Beach, supra. Courts are not free to substitute their own judgment for that of the
Board,even if they would decide the matter differently as an original matter.Albemarle County, supra.
Whether the Board's decision is supported by substantial evidence is determined within the
framework of the applicable land use policies and regulations. Thus,the evidence relevant to a wireless
facility must be evaluated within the context of any applicable policies of the Comprehensive Plan and the
regulations in the Zoning Ordinance(including, for example, the criteria for a special use permit).
21-5.3 The repeated and widespread comments of citizens,standing alone, may constitute
substantial evidence to support a decision
In applying the substantial evidence test,the repeated and widespread comments of citizens,
21-7
standing alone, may constitute substantial evidence to support the Board of Supervisor's decision.AT&T
Wireless PCS, Inc. v. City Council of City of Virginia Beach, 155 F.3d 423 (4'h Cir. 1998)(the views of
citizens, "if widely shared, will often trump those of bureaucrats or experts in the minds of reasonable
legislators"). This rule is consistent with the respect previously shown by the United States Court of
Appeals for the Fourth Circuit toward citizen participation in local land use decisions.See, e.g., Gardner
v. City of Baltimore Mayor and City Council, 969 F.2d 63 (4th Cir. 1992)(observing that those"who live
near a proposed development have the most significant personal stake in the outcome of land-use
decisions");Sylvia Development Corp. v. Calvert County, 48 F.3d 810(4`h Cir. 1995)(recognizing that
"persons with an interest in the community beyond simply a financial one will be more sensitive to the
spirit of zoning requirements and more accountable to the community's desires"than non-local
developers who"do not have to live with the adverse consequences of their development projects"). Of
course, in addition to being repeated and widespread,the citizen comments must be germane to the land
use decision at hand.
Although courts in other federal circuits have not embraced the Virginia Beach rule, some of
those decisions dealt with a record in which the governing body was not operating in a legislative
capacity,the citizen opposition was not widespread, or the citizen comments were determined to be
nothing more than generalized concerns rather than substantial evidence relevant to a land use issue.See,
Aegerter v. City of Delafield, 174 F.3d 886(7th Cir. 1999)(not acting in legislative capacity); Omnipoint
Corporation v. Zoning Hearing Board of Pine Grove Township, 181 F.3d 403 (3`d Cir. 1999)(assertions
by eleven neighbors that a monopole would be visible over the tree line and would damage property
values was not substantial evidence);Iowa Wireless Services v. City of Moline,29 F.Supp.2d 915
(C.D.Il1. 1998)(concerns of three citizens about the aesthetic impacts of a proposed tower in an area
where three towers already existed were not substantial evidence because"[i]t would completely frustrate
the purpose of the statute if the voicing of negative opinions by a small number of citizens,without mere,
could serve as a basis for denial").
21-5.4 The visual impacts of a wireless facility may be substantial evidence,and are not an
improper aesthetic consideration
Much of the evidence pertaining to an application for a wireless facility will focus on the
facility's visual impacts. Wireless providers in Virginia have argued that evidence pertaining to the
visibility of a proposed facility may not be considered because visibility is an aesthetic consideration not
allowed by Virginia law. This assertion is based on the wireless providers' misunderstanding of Board of
Supervisors of James City County v. Rowe,216 Va. 128 (1975). In Rowe,the Supreme Court of Virginia
held that Virginia localities were not enabled to impose aesthetic requirements related to the elevations of
facades, materials,colors,texture, light reflecting characteristics and other special features intended for
buildings within a particular zoning district.
The visibility of a wireless facility is primarily based on its size, height, location or bulk, rather
than its color, materials,texture or any of the other features considered in Rowe. Virginia law expressly
enables a locality to regulate the size,height, location and bulk of structures. Virginia Code§15.2-
2280(2). These interests are unaffected by the Act.AT&T Wireless PCS, Inc. v. Winston-Salem Zoning
Board of Adjustment, 172 F.3d 307(4th Cir. 1999)(board considered visual impacts of tower on
surrounding neighborhood);Sprint Spectrum v. Board of County Commissioners of Jefferson County, 59
F.Supp.2d 1101 (D.Colo. 1999)(board applied policies related to mountain site design criteria, including
those to"maximize views,to locate structures to avoid significant public views, and to avoid silhouetting
structures on top of ridges").
Because the County is one of those localities that authorize wireless facilities by special use
permit,the visibility of a wireless facility is critical for determining whether a special use permit may be
granted. When the Board of Supervisors considers the County's standards applicable to a special use
permit,e.g., whether the proposed facility will be a substantial detriment to adjacent property, or whether
the proposed facility will change the character of the district, it is not determining the aesthetics of the
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proposed facility per se. Rather, it is determining whether the facility, as proposed, will adversely affect
the neighboring properties, the character of the district, and the public in general. This determination is
quite different than the regulations that were considered in Rowe.
21-6 The Act's limitation on the County's zoning authority: the County's regulations may not
unreasonably discriminate among providers of functionally equivalent services
Section 332(c)(7)(B)(i)(1) prohibits regulations that unreasonably discriminate against
functionally equivalent wireless services(i.e., PCS and cellular):
The regulation of the placement,construction,and modification of personal wireless
service facilities by any State or local government or instrumentality thereof. . .shall not
unreasonably discriminate among providers of functionally equivalent services . .
Congress intended that localities not favor one technology over another, or favor one service
provider over another. However,this limitation does not require that all wireless providers be treated
identically. The fact that a decision has the effect of favoring one competitor over another, in and of
itself, is not a violation of the discrimination clause. The discrimination clause provides the County with
the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the
extent permitted under generally applicable zoning requirements even if those facilities provide
functionally equivalent services. H.R. Conf. Rep. No. 104-458, 104th Congress, 2nd Sess. 208(1996).
21-6.1 The County does not necessarily violate the discrimination clause when it denies a
wireless facility on land use principles
The denial of an application for a wireless facility that is based on land use principles is not
"unreasonable discrimination."AT&T Wireless PCS, Inc. v. City Council of City of Virginia Beach, 155
F.3d 423 (4th Cir. 1998). For example, if the Board of Supervisors approves a special use permit for a
wireless facility in a commercial district, it is not necessarily required to approve a permit for a
competitor's facility in a residential district. H.R. Conf. Rep. No. 104-458, 104th Congress, 2"J Sess. 208
(1996).
21-6.2 The County does not necessarily violate the discrimination clause by subjecting a
particular wireless provider to a more probing inquiry
The County may reasonably take the location of the proposed wireless facility into consideration
when deciding whether to require a more probing inquiry for one type of facility as opposed to another,
even though, in the end, functionally equivalent services may be treated differently.Sprint Spectrum, L.P.
v. Willoth, 176 F.3d 630(2d Cir. 1999)(no unreasonable discrimination where cellular facility in
industrial zoning district approved without environmental review, where such review required for PCS
facilities in non-industrial zoning districts).
21-6.3 The County does not necessarily violate the discrimination clause when a wireless
facility is not allowed in an area where another wireless provider's facilities are
located
Once the door is opened to wireless facilities in a particular area, it is not necessarily open to all
wireless providers if there is a legitimate land use reason not to allow subsequent wireless providers in the
area.
In Airtouch Cellular v. City of El Cajon, 83 F.Supp.2d 1158 (S.D.Cal. 2000), a wireless provider
obtained a permit to erect antennas on a water tower. When the plaintiff wireless provider sought to erect
its antennas on and near the same water tower,the city denied that permit. The city determined that the
plaintiff's wireless facilities would result in over-intensification of wireless facilities in the vicinity,
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increase the number of visitors to the area,and result in a seven-fold increase in the number of antennas.
The court concluded that the city did not unreasonably discriminate against the plaintiff because it
"reached a different conclusion based on different factors."El Cajon, supra(finding that the situation in
the neighborhood had changed in the time between the prior application and plaintiff's application).
21-6.4 The County does not violate the discrimination clause when its zoning regulations
become more restrictive
Provided that there is no evidence that one form of wireless service is being favored over another,
"[t]he fact that circumstances occurred in the past which gave the first competitor some advantage does
not require that a subsequent competitor be afforded the same advantage in disregard of new local zoning
rules."Sprint Spectrum v. Board of County Commissioners of Jefferson County, 59 F.Supp.2d 1 101
(D.Colo. 1999).
21-7 The Act's limitation on the County's zoning authority: the County must act on a
request for a permit within a reasonable time
Section 332(c)(7)(B)(ii)requires that the County act on a request for a wireless permit within a
reasonable time:
A State or local government or instrumentality thereof shall act on any request for
authorization to place, construct, or modify personal wireless service facilities within a
reasonable period of time after the request is duly filed with such government or
instrumentality,taking into account the nature and scope of such request.
The Act does not define what is a"reasonable period of time." This limitation was not intended
to give preferential treatment to the wireless industry in the processing of requests,or to subject their
requests to any but the generally applicable timeframes for a zoning decision.Sprint Spectrum L.P. v. City
of Medina, 924 F.Supp. 1036(W.D.Wash. 1996), cited in National Telecommunication Advisors v. Board
of Selectmen of the Town of West Stockbridge,27 F.Supp.2d 284(D.Mass. 1998). Rather, it only requires
that an application be acted upon within the period provided under Virginia law and County ordinance.
However, a decision made after the period provided by law is not necessarily a violation of this limitation
because, as its language provides,the"nature and scope"of the request must be considered,and each
situation must be independently examined. Virginia Metronet v. James City County, 984 F.Supp. 966
(E.D.Va. 1998)(fourteen month delay between submission of application and decision not unreasonable
per se).
21-8 The Act's limitation on the County's zoning authority: the County may not base a decision
on the environmental effects of radio frequency emissions if the proposed facility complies
with FCC regulations
Section 332(c)(7)(B)(iv)prohibits the County from basing a decision on the environmental effects
of radio frequency emissions if the wireless facility complies with FCC regulations:
No State or local government or instrumentality thereof may regulate the placement, construction,
and modification of personal wireless service facilities on the basis of the environmental effects
of radio frequency emissions to the extent that such facilities comply with the Commission's
regulations concerning such emissions.
This is the only provision of the Act that directly preempts local zoning authority.
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