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2002-03-20March 20, 2002 (Regular Night Meeting) (Page 1) A regular meeting of the Board of Supervisors of Albemarle County, Virginia, was held on March 20, 2002, at 7:00 p.m., Room 241, County Office Building, McIntire Road, Charlottesville, Virginia. PRESENT: Mr. Lindsay G. Dorrier, Jr., Mr. Charles S. Martin, Mr. Walter F. Perkins, Mr. Dennis S. Rooker and Ms. Sally H. Thomas. ABSENT: Mr. David P. Bowerman. OFFICERS PRESENT: County Executive, Robert W. Tucker, Jr., County Attorney, Larry W. Davis, Clerk, Ella W. Carey, and, County Planner, V. Wayne Cilimberg. Agenda Item No. 1. The meeting was called to order at 7:04 p.m., by the Chairman, Ms. Thomas. _______________ Agenda Item No. 2. Pledge of Allegiance. Agenda Item No. 3. Moment of Silence. _______________ Agenda Item No. 4. From the Public: Matters Not Listed on the Agenda. There was no one present who wished to speak at this time. _______________ Agenda Item No. 5. Consent Agenda. Motion was offered by Mr. Martin, seconded by Mr. Perkins, to approve Item 5.1, and to accept the remaining items on the consent agenda for information. Roll was called, and the motion carried by the following recorded vote: AYES: Mr. Martin, Mr. Perkins, Mr. Rooker, Ms. Thomas and Mr. Dorrier. NAYS: None. ABSENT: Mr. Bowerman. __________ Item 5.1. Set public hearing on an ordinance to amend County Code Section 2-502, Concealed Handgun Permits, to repeal the requirement of a national criminal records check for concealed handgun permits. It was noted in the staffs report that in 1997, at the request of the County Sheriff, County Code =' 2-502 was adopted to require that personal information and fingerprints be taken from all applicants for a concealed handgun permit and that this information be forwarded through the Central Criminal Records Exchange of the State Police to the FBI for the purpose of obtaining a national criminal records check. The FBI will not process fingerprints submitted for national records checks for concealed handgun permits unless the locality has adopted an ordinance requiring such a records check. A national criminal records check is not required by State law. The national criminal records check currently costs $24 per applicant and takes six weeks or longer to be processed. The County Sheriff has now requested that County Code 2-502 be repealed or amended to ' remove the requirement that he conduct a national records check on each concealed handgun permit applicant. The only identified benefit of a national records check is that it can be the basis to revoke a concealed handgun permit or prosecute an applicant for perjury if it reveals that an applicant has falsely completed an application and has a criminal history not reported by the CCRE or concealed by false identities or aliases. It is unknown if the national criminal records check is a deterrent to false applications. The Sheriff reports that the national criminal records check rarely reveals any unknown criminal history. It is his opinion that the cost of the records check outweighs its value. If the Board concurs with the Sheriff's request, staff recommends that the draft ordinance be set for a public hearing on April 17, 2002. By the recorded vote set out above, the Board set April 17, 2002, as the public hearing date on An Ordinance to Amend and Reordain Chapter 2, Administration, Article V, Law Enforcement, of the Code of the County of Albemarle, to amend Sec. 2-502, Concealed handgun permits. __________ Item 5.2. 2001 Fourth Quarter Building Report, as prepared by the Department of Planning and Community Development, was received for information. __________ Item 5.3. 2001 Year End Building Report, as prepared by the Department of Planning and Community Development, was received for information. __________ Item 5.4. Copy of letter dated March 1, 2002, from Bernice C. Unland, Director, Department of Housing and Urban Development, Section 8 Financial Management Center, to Ronnie L. White, Housing, re: Under-Utilization of Section 8 Rental Assistance, VA036, Your Fiscal Year Ended June 30, 2001. In the letter Ms. Unland states that an analysis of the Countys utilization of Section 8 funds for the fiscal year = which ended June 30, 2001, showed that utilization rates were below 90 percent for the fiscal year. She said the program should have 95 percent utilization, and she urged the county to take steps immediately to increase utilization. Letter was received for information. March 20, 2002 (Regular Night Meeting) (Page 2) (Mr. Martin said he had thought about having this letter pulled for discussion, but will not do so tonight. Ms. Thomas asked if everybody had gotten a copy of Mr. Ron Whites e-mail explanation to her. = She had asked him to send it to all Board members. Mr. Martin said he did read that e-mail. He believes that part of the reason it is becoming more difficult for landlords to take Section 8 vouchers is because of the Court system and the difficulty in evicting a bad tenant. That hurts because it puts the landlord in a position where they can no longer take in a tenant who is marginal. If the landlord makes a bad decision, it will take three months or longer to get that person out of the unit. In the meantime, the landlord may have lost his profit for the entire year. Mr. Martin said he does not know what can be done. There is nothing the County can do about it. The laws will have to change to give landlords more abilities. The laws have moved so far in the direction of the tenants that it is actually hurting tenants because it forces the landlords to only allow top-of-the-line-people.) __________ Item 5.5. Letter dated February 28, 2002, from W. Scott Benton, Environmental Engineer, Department of Environmental Quality, Valley Regional Office, to Sally Thomas, Chairperson, re: Reissuance of VPDES Permit No. VA0087351, Virginia Oil, Charlottesville, for location at 1100 Harris Street in the City of Charlottesville. Notice was received for information. (Ms. Thomas asked if staff had looked at this letter in detail. Mr. Tucker said he had passed the letter to the Water Resources Manager and had not gotten a response yet.) __________ Item 5.6. Copy of draft Planning Commission minutes for January 22, February 5, February 12, February 19 and February 26, 2002, received for information. _______________ Agenda Item No. 6. Public hearing to receive comments on proposed application for Community Development Block Grant Funding - Whitewood Village Apartments. (Notice of this public hearing was published in the Daily Progress on March 11, 2002.) Mr. Tucker said the Virginia Department of Housing and Community Development (DHCD) administers the Community Development Block Grant Program (CDBG) for the Commonwealth of Virginia. CDBG funding is provided for a variety of activities including housing, economic development and community facilities. Projects must meet at least one of three national objectives. DHCD projects approximately $13.7 million available for competitive grants for program year 2002. The Board held a public hearing on February 20, 2002, to get input on eligible housing or community development activities for which the County may seek CDBG funding. One resident of Corville Farms Subdivision spoke about their water system needs. Since this is a private water system, the application would not be eligible for CDBG funding. Staff will continue to seek options to help the residents resolve this issue. The County received a Planning Grant, funded through DHCD, to study the feasibility of acquisition and rehabilitation of Whitewood Village Apartments. Feasibility studies included a market analysis and architectural study to determine rehabilitation needs and estimated costs of improving the units and constructing a community center. The studies resulted in a final scope of work and project budget. Albemarle Housing Improvement Program (AHIP) executed and extended an option to purchase Whitewood Village Apartments. The projected estimated costs for the proposed development activities will exceed $9.0 million. Proposed funding sources will include loans from VHDA and DHCD, private gap financing, CDBG, low-income housing tax credits, Federal Home Loan Bank, HOME funds, and local funding through the Albemarle Housing Initiative Fund. To minimize displacement for extremely low-income families, the Countys Section 8 Housing Choice Voucher Program will maintain project-based assistance to 24 units in = the development that will serve families below 30 percent of the area median income. Staff recommends that the Board adopt a resolution to apply for $465,160 in Community Development Block Grant funding from DHCD. Such funding would be secured by a deed of trust on the property to ensure that the property remains affordable for a minimum of 20 years. In addition, staff recommends that the Board encourage the use of Albemarle Housing Initiative Funds (AHIF) and other funds leveraged by AHIF as permanent financing resources to support the project. Ms. Thomas asked about the Albemarle Housing Initiative Funds. She said she did not know the difference between AHIP and AHIF. Mr. Ron White, Housing Director, said the AHIF is a fund supported through the Countys budget at = $50,000 per year. The fund is managed by the Piedmont Housing Alliance for affordable housing activity within the County. One reason the money is with PHA is that they are able to leverage other funding from the Federal Government. Up until this fiscal year, there have been three years of funding in the amount of $150,000. PHA leveraged Federal funds in that same amount. The fund has been used by AHIP for some rehab activity, and by first-time home buyers and also used to support the option and make the earnest money deposit on Whitewood Village. Mr. Tucker said the Board was used to seeing the money under Piedmont Housing, and Albemarle Housing Improvement Fund is a new term being used. Mr. Rooker asked how much is being invested in improvements if this whole proposal goes forward. March 20, 2002 (Regular Night Meeting) (Page 3) Mr. White said part of the money will be used to buy the facility. The hard costs on improvements, including the community center, is approximately $2.5 million. The whole complex will be reconfigured. Currently there are no three bedroom units there. There will be general improvements inside, outside improvements, and the heating system will be replaced. At this time, Ms. Thomas opened the public hearing. With no one from the public rising to speak, the public hearing was closed, and the matter placed before the Board. Motion was immediately offered by Mr. Rooker to adopt the following resolution to apply for $465,160 in CDBG funding from DHCD, with funding to be secured by deed of trust on property to ensure that property remains affordable for a minimum of 20 years. In addition, the Board encourages the use of Albemarle Housing Initiative Funds and other funds leveraged by AHIF as permanent financing to support the project. The motion was seconded by Mr. Dorrier. Roll was called, and the motion carried by the following recorded vote: AYES: Mr. Martin, Mr. Perkins, Mr. Rooker, Ms. Thomas and Mr. Dorrier. NAYS: None. ABSENT: Mr. Bowerman. RESOLUTION WHEREAS, the County of Albemarle is committed to ensuring that safe, decent, affordable, and accessible housing is available for all residents; and WHEREAS, the County of Albemarle is committed to improving the livability of all neighborhoods and access to support services by residents; and WHEREAS, the County of Albemarle is committed to preserving, to the extent possible, all existing affordable housing stock; and WHEREAS, pursuant to public hearings held on February 20, 2002, and March 20, 2002, the County of Albemarle wishes to apply for $465,160 in Community Development Block Grant funds for a Community Service Facility Project for the Whitewood Village Apartments; and WHEREAS, other resources estimated in excess of $9,000,000 including, but not limited to, VHDA loans, Low-Income Housing Tax Credits, HOME funds, Federal Home Loan Bank, Virginia Housing Partnership Fund, the Albemarle Housing Initiative Fund, and funds leveraged by the Albemarle Housing Initiative Fund will be invested in the project; and WHEREAS, one hundred percent (100%) of the population residing at Whitewood Village Apartments is very-low and extremely-low income, all receiving rental assistance through project-based vouchers; and WHEREAS, the project-based contract expires beginning in the summer of 2002; and WHEREAS, the current owners have indicated a desire to sell the property and have executed an option with the Albemarle Housing Improvement Program as purchaser; and WHEREAS, the projected benefits of the project include: Rehabilitation of 96 affordable rental units benefiting approximately 350 $ persons, one-third of whom are children; Construction of a community center; and $ Provision of services to enhance the livability and improved $ self-sufficiency of the tenants. NOW, THEREFORE, BE IT RESOLVED that Robert W. Tucker, Jr., County Executive, is hereby authorized to sign and submit the appropriate documents for applying for this Virginia Community Development Block Grant application. _______________ Agenda Item No. 7. SP-2001-038. American Tower Site No. 10109 Ch'ville - Shadwell (Signs # 66 & 67). Public hearing on a request to allow replacement of existing 296' tall guyed telecommunications tower w/new 260' tall tower, which would structurally allow the collocation of add'l antennae & ground-based facilities on 3 acs, znd RA. This proposal is being made in accord w/Sec 10.2.2.6 of the Zoning Ord. TM78, P51C. Located approxi 1 ml E of Lego Dr (Rt 1090), nearly 1/3 ml N of the intersec w/Hansen's Mountain Rd (Rt 1777) & is adj to Ashcroft Subd. Rivanna Dist. (Notice of this public hearing was published in the Daily Progress on March 4 and March 11, 2002.) Mr. Cilimberg summarized the executive summary which is on file in the Clerks Office. He said this = request is for the structural reinforcement of an existing, nonconforming, 296-foot guyed telecommunications tower. This would allow the collocation of additional antennae and ground-based March 20, 2002 (Regular Night Meeting) (Page 4) facilities on three acres zoned Rural Areas. It would reduce the height of the tower from its current 296 feet to 260 feet. The method for reinforcing the tower consists of an additional framework structure which would be constructed and attached to the outside of the existing structure. Changes would include removing the microwave dish and FM broadcast antennae and replacing the existing FAA required safety beam with a light which uses new technology intended to prevent the down lighting of nearby properties and residences below the tower. As is the case with the tower in its existing state, the most prominent feature on the tower under this new proposal would still consist of an array of antennas mounted at approximately 206 feet above ground level. The antennas are attached with triangular stand-off brackets that extend approximately eight and one-half inches from the face of the tower. The information for the proposal indicated that all other antennae would either be flush-mounted or pipe-mounted, with no more than 12 inches or less between the mounting structure and faces of the antennas. Staffs recommendation = includes a condition that would require all attachments to be flush-mounted. Mr. Cilimberg said staffs review has focused largely on evaluating comparisons of the possible = visual impacts resulting from the modified tower to the structure in its current state. Staff found factors favorable to include approval of the proposal would allow further opportunities for collocation, the modified tower would be 36 feet shorter than its current height, expansion and redevelopment of the facility could be effective in reducing the total number of new facilities that would be needed to provide the coverage objectives within the immediate geographic area, no significant clearing would be required for the area where existing guy wires are located, and, the microwave dish and FM broadcast antennas would be removed from the tower. Mr. Cilimberg said a factor of concern is that the proposal still requests the allowance for the most visible set of antennas to be attached to the tower in a manner that does not meet the definition of flush- mounted. Other relevant factors are: This site must be established and maintained in accordance with all of the relevant regulations set forth in Section 5.1.40, the site lies within a designed mountain resource area, there is already an established and reasonable use on the property, the cables and wires would be relocated within the boundaries of the main structure, the new FAA-required safety beacon would be designed to prevent downward lighting of the surrounding properties, and the new tower and ground equipment would not restrict any of the permitted uses on adjacent properties. Mr. Cilimberg said staff recommended approval with conditions, including one that would require all panel antennas to be flush-mounted. However, the Planning Commission, at its meeting on February 26, 2002, by a vote of 4:3, recommended denial of the special use permit because the proposed facility was highly visible and was inconsistent with the wireless policy. The setback waiver was denied by the Commission because it found that public health, safety or welfare would not be better served by the granting of the waiver. He said there were some suggestions for modifications to the conditions recommended by staff should the Board choose to approve the permit, i.e., including the color of the old tower, and the new support facility, and a condition that no antenna could be higher than the highest panel antenna currently located on the existing tower. Mr. Cilimberg said that posted on the wall tonight is an illustration to compare the existing tower to that proposed under this special use permit. A number of illustrations were also provided with the Boards packet. The applicant has also provided the Board with = correspondence regarding their findings on the merits of this request. Mr. Dorrier asked if the tower is presently a nonconforming use. Mr. Cilimberg said yes. It was A@ built before the County had any permit requirements. Mr. Davis said the tower would require a special use permit under the existing Zoning Ordinance and it does not have one, so it is nonconforming because it does not have a special use permit. Under existing Comprehensive Plan guidance it would be hard to be approved for a special use permit if it were a new facility. At this time, Ms. Thomas opened the public hearing, and asked the applicant to speak first. Ms. Valerie Long was present to represent American Tower. She said Mr. Francis Silverholtz from American Tower was also present. She said the Board had a lot of information in its packet, and she had supplemented that information to a great extent. She will respond to the reasons the Planning Commission did not support the application, and provide some justifications for the applicants request. In the written = action letter from the Commission there were two reasons specifically stated for why the Commission did not recommend approval of the permit. One reason was that the proposed facility would be highly visible, and that it is inconsistent with the Countys Wireless Policy. She said based on her conversations with = several members of the Commission, as well as some Board members, the concern seems to be that granting the permit would cause this nonconforming tower to become a conforming tower, but that it would not meet the characteristics of a tower that would be approved today, and the situation poses a threat to the public health, safety or welfare. She said a nonconforming use may not be enlarged or expanded. If it is enlarged or expanded, it has to immediately come into compliance with all applicable regulations in the existing Zoning Ordinance. By proposing to structurally modify this tower, this proposal triggers that conformance requirement. American Tower would have to immediately comply with all applicable regulations of the Zoning Ordinance. Even if the tower acquires this conforming status, with a special use permit and standards conditions, it would continue to limit the ability of the applicant to expand, enlarge or otherwise modify the tower. Ms. Long said the conditions would prohibit expanding the height of the tower, expanding the number of collocation antennas on the tower, would limit the number, color, size and location of the ground equipment, would limit the number of antennas, their size and their color. Whether this tower is a nonconforming use or a conforming use, it is still highly and strictly defined by the limits of either the conditions as a conforming use, or the nonconforming use provisions of the Zoning Ordinance as a nonconforming use. When this application is looked at in light of that fact, the issue should be: is this March 20, 2002 (Regular Night Meeting) (Page 5) proposed tower going to be any more visible than the existing tower is now? She said the tower will be voluntarily reduced in height by 36 feet, the cables will be inside of the tower rather than outside resulting in a narrower profile of the tower, all of the new panel antennas will be flush-mounted and painted to match the color of the tower, and additional landscaping is being provided. There has been some concern that locating the cables internally to the structure causes it to be more opaque and perhaps more visible. She said that will be balanced out by the fact that the tower would be lower in height and have a more narrow profile. Ms. Long said there is a new issue which has been resolved in the last twenty-four hours. It is directly in response to comments made by the Planning Commission as well as comments made by Ms. Thomas to her yesterday. They have been working with two of the new providers and have convinced them to relocate their antenna panels on the structure at a height so they will not be any higher on the structure than the current highest set of antennas are now. She distributed to the Board members an exhibit representing this change. She said that now U.S. Cellular has the highest set of antennas at 236 feet. Originally they had proposed to have another carriers antennas higher up than that. They have convinced = U.S. Cellular to adjust internally, as long as they can keep ten feet of spacing in between each set of antennas. That was a significant concession on the part of the applicant, as well as two of its proposed tenants. They hope that provides additional evidence that the new tower will not be any more visible than the existing tower. Ms. Long said regarding inconsistency with the Wireless Policy, she argues that it is not inconsistent. The new panel antennas will be flush-mounted, painted to match the color of the structure, will not extend above the top of the tower, the ground equipment will be either enclosed in existing buildings, or the one that is not is a small five-foot cabinet which will be painted brown, and effectively screened from all adjacent properties. The tower height will be voluntarily reduced. These are all issues which are specifically addressed in the Wireless Policy. By using these measures, it will help mitigate the visibility of the new tower, particularly as compared to the existing tower. Ms. Long said this is not an application for a brand new tower. This tower has existed at this location and at this height for almost 40 years. The Wireless Policy also speaks to opportunity sites. It A@ describes opportunity sites as locations where existing structures can accommodate the placement of new wireless facilities with limited impact. It further states that the placement, construction and/or modification A of personal wireless service facilities within an opportunity site is encouraged. She said this is obviously an @ existing structure, it can accommodate the placement of new wireless facilities, and with the mitigating measures she has mentioned it will have limited visible impacts. She said the policy also speaks to avoidance areas. It states that facilities can be improved in avoidance areas with proper mitigation of A@ visibility. She said the new antenna panels will incorporate measures which will reduce their visibility. Ms. Long said in the Planning Commissions action letter, there were also two reasons listed for = why the setback waiver was not granted. She has two issues to discuss. She said the incorrect legal standard was used as is stated in the letter. The correct legal standard contained in the Zoning Ordinance states The Commission may modify or waive either requirement of subsection (b) in an individual case if it A determines that the public health, safety or welfare would be equally or better served by the modification or waiver. She said the action letter states that the petition was denied because the Commission did not think @ the public health, safety or welfare would not be better served by the granting of the waiver. She said the Commission focused on better whereas the legal standard actually reads equal or better. She thinks A@A@ that when the correct legal standard is applied, it is reasonable for the Board to determine that the public health, safety or welfare will be at least equally served by the modification. The waiver will allow the tower to be voluntarily reduced by 36 feet, which brings the tower closer to complying with the setback requirement, particularly when one considers that this tower has never met the setback waiver. It is not meeting it now, and reducing the height by 36 feet will not make it any worse. It would make it slightly better. She said Ms. Thomas had commented to her that she might understand an argument that the public might be worse off because there is a tower which is nonconforming and which might go away in a A@ few years, compared to granting a waiver which would extend the life of the tower. Ms. Long said it is important to note that under the existing Zoning Ordinance, even a nonconforming use can still be maintained. It can't be expanded or enlarged, but it can be maintained. If American Tower determines that the tower needs to be maintained for safety purposes, they have the authority to do that. In addition, if the tower were to collapse due to factors beyond the control of American Tower, they can replace the tower at its same exact height and size within a two-year period. She thinks that addresses the concern that granting the waiver does not make the public health, safety and welfare any worse. It merely allows the applicant an opportunity to come closer to complying. Ms. Long said the second reason was the testimony of the objecting neighbor, who said that the A close proximity of the facility would adversely impact her property. She said this tower will not go away any @ time soon. American Tower made a large investment in this facility two and one-half years ago. Their company has a long economic life. It has existed since the 1960s. This neighbor stated on the record that she moved to her property after the tower was built. The tower has never complied with the setback requirements. If there is an adverse impact on the adjacent neighbors property, it already exists. Granting = this permit and granting this waiver will not exacerbate that problem, particularly with regard to the waiver. Ms. Long then distributed to the Board a revised exhibit demonstrating where the new antenna panels would be located on the tower. Ms. Thomas asked if any Board member had a question before she opened the public hearing. Ms. Rooker asked when the lease was signed with Ntelos. Ms. Long said she understands Ntelos March 20, 2002 (Regular Night Meeting) (Page 6) collocated either in 1996 or 1997. Mr. Rooker asked when that lease expires. Ms. Long said it is a 25-year lease; she has a letter from Ntelos stating that American Tower contacted them and asked them to flush-mount their antennas, and they have said they are not able to do that. That would have an adverse impact on their network system. Mr. Rooker asked if Ntelos had been offered anything to change the configuration of their antenna. He said American Tower is in the business of buying towers and leasing space. They are asking for a change which would allow them to triple their income on this tower, which gives them some room to approach Ntelos about going to a flush-mounted antennae, with either a lease concession of some kind, or perhaps some kind of a flat dollar offer. If this special use permit is granted, there is the opportunity for huge additional dollars. The most important thing about this tower is the antenna in the middle which sticks out eight feet in either direction. He questions if it is not possible to have Ntelos agree to flush mount their antennas if they are offered some reasonable consideration for doing so. Ms. Long said Ntelos has been approached, and she cannot say that a monetary compensation was considered. They have indicated to her, both verbally and in writing, that they designed and built their existing wireless network around these antennas. Changing from set-off antennas to flush-mounted antennas has a significant attenuation impact on the distance the signal will travel. This is not the center of their network, but the facilities which connect to this site are precisely located relative to this site based on the distance the signal travels from this location. If they were forced to flush-mount their antennas, they would have significant gaps in their service which would require additional facilities to fill that gap. She said that based on her knowledge and understanding, the costs for an individual wireless facility is between one- quarter and one-half million dollars per site. One additional site would be needed for Ntelos to fill the gap, and it might require two sites. To make Ntelos an offer in that regard would make the option of a lease payment economically infeasible for American Tower. Mr. Rooker said unless there has been engineering done, he does not think anyone knows what would be required for Ntelos to go to flush-mounted antennas. In the past, he has talked to engineers about the existing type of antennas versus flush-mounted antennas and been told there is not that dramatic a difference in coverage. He realizes they may have gotten a different answer on this particular antenna. Ms. Long said she cannot speak for Ntelos directly. Her experience in representing the various wireless providers is that they resist with all of their might having to flush-mount panel antennas because it has such a significant impact on the distance the signal travels. One of her other clients, when they found that Albemarle was going to require that the panel antennas be flush-mounted, redesigned their entire system for Albemarle, but it required about seven additional sites in order to do that. Mr. Martin said he thinks it is inappropriate to get into an argument back and forth. The applicant has finished speaking and is only standing there to answer questions and not take criticism. She has said the company by which she is employed would have to have more poles. Whether that is correct, or incorrect, that is the only answer she has. He does not think it is the Boards place to say we know more =A than you about your company, so you shut up! Mr. Rooker said that is not what he said. Mr. Martin said @ that is the way it sounded to him. What Mr. Rooker is saying is that he does not like this request, and we A will discuss it later. @ Ms. Thomas said there was a discussion going on which she deemed to be appropriate, and she asked that Mr. Rooker bring it to a closure. Mr. Rooker said he has all the information he needs. He would like to have a copy of the letter Ms. Long indicated she had for the Board. He thinks it is an important issue as to whether or not Ntelos can find another way to provide the coverage. Mr. Martin said Mr. Rooker can only ask the question, and Ms. Long can only answer it. Ms. Thomas asked if there were other specific questions of the applicant. She was about to suggest that the Board continue with the public hearing. Mr. Dorrier asked how many companies are involved, other than Ntelos and American Power. Ms. Long said there is U.S. Cellular, Alltel and a new provider is Devon Communications. Mr. Dorrier asked how many companies are on the tower now. Ms. Long said there are three wireless companies on the tower now. They are adding two new companies. One of the existing companies, Alltel, already has analog antennas, those are the stick antennas which are hard to see from a distance. Alltel is shifting to a digital system. They have to continue providing both services, so three new sets of panels are being added. Mr. Dorrier asked if these antennas will be flush-mounted. Ms. Long said that is correct. There will be no new antennas that have the objectional characteristics of standing off from the tower that results in visibility. All three new sets of panel antennas will be flush-mounted. They will all be within eight and one- half inches from the reinforced structure. They will be painted gray to match the reinforced structure. Mr. Dorrier asked the reason for reducing the height of the tower. Ms. Long said they are voluntarily doing that to try and mitigate visibility. Mr. Dorrier said it seems unusual that they are doing this out of their good will. Ms. Long said she March 20, 2002 (Regular Night Meeting) (Page 7) explained to her client that this is an unusual application. She does not think the County had received an application like it before, and that it would be a challenge to address the issue because it is a nonconforming tower, and they needed to take steps to mitigate visibility to the extent reasonably possible. They were not using the top of the tower. They felt that if they were going to undertake the reinforcement of the tower, they could reduce its height voluntarily. Ms. Thomas said she has already asked Ms. Long a question about Nextel, and asked if she wanted to address that question at this time. Ms. Long said the second question that Ms. Thomas asked her yesterday regarded one of the new carriers proposed for the tower, Nextel Partners. There are alleged cases where Nextel Partners antennas = and facilities have caused interference with 800 MHZ systems. Ms. Thomas asked her to confirm with Mr. Campagna of the E-911 System whether they have approved Nextel Partners collation at this location and at this height to insure that there will not be any interference with the 800 MHZ system. She did not reach Nextel Partners until late in the day, and she left messages for Mr. Campagna. Since she did not get an answer quickly enough, Nextel Partners and her client agreed to accept a condition that would prohibit Nextel Partners from obtaining a building permit until they receive some type of written certification from the County Emergency Communications System that it will not interfere with their system. She said that seems to be a reasonable request. At this time, Ms. Thomas opened the public hearing. Mr. Richard Cogan said he is a County resident. He does not live in that section of the County, but Ms. Linkous and her family have been friends for many years and she asked that he speak for her in her opposition to this application. He said he would address both Agenda Item No. 7 and Agenda Item No. 8, if that was alright with the Chairman. Ms. Thomas indicated that it would be alright. Mr. Cogan said he would like to point out Page 3, Paragraph 4, in the staffs report which says: Staff has determined that the =A approval of this proposal would act to terminate the nonconforming status of the facility requiring it to be reviewed in the same manner as the request for a new facility. He said that is right. While the applicant @ says the tower is there now, it is physically there, but it is not there as far as the Zoning Ordinance is concerned. As a result of this statement in the staffs report, this application for a special use permit must = comply with all existing ordinances in the current Albemarle County Code. Mr. Cogan said he has taken excerpts from the Comprehensive Plan, and the Albemarle County Code which he thinks apply to this application (he handed a copy to the Clerk for the permanent records of the Board). He noted the Comprehensive Plan section concerning Natural Scenic and Historic Resources. He said this is obviously a scenic area atop Hansons Mountain. It has a very expansive view of the = Piedmont Plain. Under Scenic Resources, Dramatic Topography, there is no question that there is dramatic topography in this area. Scenic Landscape Features also apply to this area. This tower actually smacks in the face of what is in the Comprehensive Plan. Mr. Cogan said Section 5.1.12 states that the proposed new use should not be detrimental to neighboring properties. This is the concern of Ms. Linkous. Section 31.2.4.1 says The Board may issue a A permit upon finding that such use will not be a substantial detriment to the adjacent property, etc. He @ asked that the Board keep in mind that staff said this is essentially a new facility, and he agrees with staff. Section 4.10.3.1(c) allows the Planning Commission to modify or waive the requirements. He said that unanimously the Commission said it would not waive the requirements. They can only do it if they determine that the public safety would be better served by such modification or waiver. Obviously, public safety would not be better served so they declined to waiver. Under Section 4.10.3.1(d)(1), the Board can still grant that waiver, but he hopes the Board does not do that. (Time expired) He said that 5.1.40(d)(2) states, the director of planning and community development may authorize the facility to be closer in distance than its fall line, provided easements for adjoining property owners prohibiting any structure within such easements be granted to American Tower. Mr. Cogan said there are two other regulations in 5.1.40, (c)(2) limits the total number of arrays to three for the existing structure, and they must be flush-mounted, and they may not project more than 12 inches from the existing structure. He said the ordinance says they cannot be more than 12 inches and they must be flush-mounted. Ms. Shirley Linkous said she owns the property adjacent to the radio tower. This is an almost 40- year old radio tower which has outlived its usefulness. It is outdated and not structurally sound. It has been turned into a cellular tower which does not conform to Albemarle Countys Code. To modify this is the = same as building a new tower, but keeping the height at 260 feet which does not comply with Albemarle County policies for new cellular towers. She said that when she moved there 13 years ago, it was a radio tower. Then in 1998, huge antennas started appearing. It took on an entirely different look. It marred the whole landscape. It can be seen for miles. She said she will not give American Tower an easement over her property. She asks that the Board not give them a waiver and not grant them a special use permit. She does not think that lowering the tower from 296 to 260 feet will make a big difference. Mr. Jeff Werner was present on behalf of the Piedmont Environmental Council (copy of his statement is on file in the Clerks Office). He said that many people were disappointed when the Board = approved the tower on Peters Mountain. The Department of Historic Resources has since concluded that the tower will have an adverse impact on the Southwest Mountains Historic District. He said this applicant is seeking special approval for a tall, existing tower in eastern Albemarle. PEC again suggests that the County should have pursued the use of this tower for the 800-MHz system. It may not have served as an alternative for the Peters site, but the consultant did suggest that it might serve as one of the Carters sites. = The Board dismissed this idea. March 20, 2002 (Regular Night Meeting) (Page 8) Mr. Werner said in the discussion about the Peters Mountain site, PEC brought to the Boards = attention the interference problems that 800-MHz public safety systems are experiencing from commercial systems. One of the primary causes of this interference is Nextels radio network. Nextel is identified as a = proposed user of the Shadwell tower. In other jurisdictions where interference is an issue, often the solution is to add more towers. Therefore, the County is considering approval of a tower that may support a private carrier whose system may interfere with the public safety system. If this special use permit is granted, some provision should be made to place the burden of that solution on someone other than the County citizens who have already had to accept one visible intrusion into the Southwest Mountains. Mr. Werner said the proposed reuse of this tower is a clever say to construct a new tower A@A@ around the skeleton of the old. If this were a new tower, it simply would not be allowed. The Countys = tower policy should be applied. With no other member of the public rising to speak, Ms. Thomas said the applicant might speak again. Ms. Long said Mr. Cogan mentioned that according to the Zoning Ordinance this tower does not exist. She argues that it does exist under the Zoning Ordinance as a nonconforming use. As a nonconforming use, the applicant may not expand or enlarge it unless it brings it into compliance with current zoning regulations. If the permit is granted, the tower would become a conforming use. It would continue to be constrained and restricted by the conditions attached to any special use permit. American Tower could not further expand it, enlarge it, or increase its use except within the bounds of the conditions of approval. This tower is not new. It has existed since the early 1960s. Even if it were considered akin to a new tower under the Zoning Ordinance, there is no greater threat to the public welfare from this tower than there already is. This tower will continue to exist whether this permit is granted or not. She said this is a reasonable use of an existing facility. All the proposed additions to the tower will strictly comply with the Wireless Policy and with the Zoning Ordinance. There will be minimal visibility. The tower will be less visible than the existing tower. Ms. Long said there was a comment made that the Planning Commission unanimously denied the waiver of the setback. She reminded the Board that they denied it by applying the incorrect legal standard. She believes that if the Board focused on the correct legal standard as contained in the Zoning Ordinance, it would be reasonable to grant this permit because the public health, safety or welfare will be equally or better served. Ms. Long said in regard to comments by Mr. Werner, she will reiterate that Mr. Werner approached her several months ago as to whether American Tower would be interested in allowing the County to collocate on the tower. American Tower was eager and willing to work with the County. She expressed that to Mr. Werner. She spoke with Mr. Campagna about it. They did express a wish to be cooperative. She appreciates the Boards consideration of this request. She would like to ask one question about = procedure. Will she have an opportunity to address the waiver of the setback as a separate public hearing because it is listed that way on the agenda? Ms. Thomas said yes and others in the audience may also speak. Mr. Davis said that item is not A@ listed as a public hearing on the agenda. Mr. Cilimberg concurred. Ms. Thomas said Ms. Long had assumed that she could speak separately to that question. Mr. Cogan had said he would address both items at the same time. She wanted to be even-handed. Mr. Davis said it is at the Boards discretion as to = what comments it wants to receive from anyone, but it is not a required public hearing. Ms. Thomas said the Board will take some comments at that point. Mr. Rooker asked if Ms. Thomas would rather have Ms. Long speak about that issue at this time so the Board might be able to deal with both issues together. Ms. Thomas said she does not believe there can be a big difference in any comments added, so Ms. Long may speak at this time about the waiver. Ms. Long said she appreciates the Boards consideration. She did allude to this issue because she = thinks the two issues are so related to one another that it is somewhat difficult to separate them. She said when you focus on the legal standard, equal or better than which is the correct standard in the ordinance, A@ it is reasonable that the Board would determine that granting the waiver would result in the public health, safety or welfare being equal or better served by the waiver. Another reason the Commission did not grant the waiver was based on the testimony of an objecting neighbor who stated that the close proximity of the facility would adversely affect her property. If there is an adverse impact on her property, it has existed since she moved to the property. If there is an adverse impact, it exists already, and granting the waiver will not exacerbate that problem. It will not make it any worse. Ms. Long said this tower has never met the setback standard. This tower will continue to not meet the setback standard if the waiver is denied. It will continue exactly as it is. She argues that granting the waiver will enable American Tower to voluntarily reduce the height by 36 feet, thus reducing any impact that might be affecting the adjacent property. Ms. Long said she had some photographs to distribute which demonstrate the tree coverage in the area. She has several photographs which show the existing landscaping that American Tower is proposing to replace and add to. On the site, they will replace existing landscaping that is not doing well and which appears to be an inappropriate species. They are adding a double, staggered row of trees for landscaping. They also propose to add landscaping on the adjacent neighbors property at the location of her choosing, to address any impact there might be as a result of the = tower not meeting the setback. Ms. Long said the Planning Commission discussed the adverse impact of the tower on property values. That was also a reason why the waiver was not granted. She did research in the County March 20, 2002 (Regular Night Meeting) (Page 9) Assessors Office, and found that this property increased in value 21 percent between 2001 and 2002. She = said that would not reflect an adverse impact. Regarding the easement, the Commission expressed concern that American Tower came to the Board requesting a waiver of the setback prior to discussing easements with the neighbors. She said when the application was filed the easement option did not exist. That was adopted by the Board after American Tower filed its application. All along they had planned to request a waiver of the setback from the Commission. This is an existing tower; it is not a new tower. Granting a waiver is reasonable based on the legal standard. Ms. Long said according to the Zoning Administrator the easement option that was added was intended to be an additional tool for applicants to use to address the setback issue. She said it is being applied as a mandatory first step. It essentially guts the option of the waiver because staff and the Commission have required applicants to go to adjacent landowners first and obtain an easement. She said that could have the potential of giving one adjacent neighbor veto power over a special use permit that would otherwise be appropriate. If the Commission says it will never grant a waiver if there is any objection from an adjacent neighbor, and the neighbor knows that all they have to do is say they will never grant an easement, that is the end of it. She will argue that a waiver should be considered on its merits. If the waiver application meets the legal standard, it should be granted. She said the easement is not something the applicants are not considering, it puts them in an extremely bad business position where it can amount to veto power by a single landowner of an otherwise appropriate use. She has submitted a list of suggested modifications to the staffs conditions. = Mr. Rooker asked if another way to get around needing a waiver is to lease a big enough piece of property that the tower height does not exceed the boundaries of the property. Ms. Long said she agrees, but this tower has existed on this parcel for 40 years. It is on three acres, so it is not too small. That is also another reason why American Tower voluntarily lowered the height as far as possible. Mr. Rooker said his question did not have to do so much with this application, but the process generally. Ms. Long said it seems that the waiver provision was designed to be applied in situations as Mr. Rooker suggested, with new towers; not to existing towers. She thinks this case is unique. Usually, with existing towers, there is collocation only, and a setback is not relevant. Ms. Dorrier said this is an area where there should be no towers, how far away is the closest tower to this one? Ms. Long said she is not sure, but there is a treetop tower on the other side of the interstate behind the Ramada Inn at the Shadwell Exit. It may be one mile away. Ms. Thomas said Mr. Cogan did not get to finish his remarks earlier so she is going to allow him to speak now. Mr. Cogan said that in the staffs report it says that if the Board approves the proposal, the tower = loses its nonconforming status, and it is a new facility. As far as the waiver is concerned, the ordinance says the Commission may modify or waive either requirement if it determines that the public health, safety A or welfare would be equally or better served. He asked why it is equally or better served. There will be A@ more wind resistance on a 40-year old structure that would impose 130 feet into the Linkous property if it should come down. He thinks the waiver has to stand. If you read the other section he referred to, the director of planning and community development can authorize it to be located that way even without the waiver provided they get the easements from the adjoining property. That is in Section 5.1.40(b)(2). With no one else from the public rising to speak, the hearing was closed and the matter placed before the Board. Mr. Perkins said he had a question for staff. Since this is a nonconforming tower which has had wireless communications added to it, were they done in the legal fashion? Is that what spurred the need for this special use permit? Mr. Davis said the 1996 facility which was added was done based on a decision rendered by the Board of Zoning Appeals which overturned the Zoning Administrators determination that they could not add = additional equipment to the tower. Whether or not that was a correct decision is debatable. He maintains that was not a correct decision, but the decision was not appealed at the time. Since the amendment to the ordinance, no additional equipment could be added to this tower because the present Zoning Ordinance specifically addresses when additional equipment may be added to the tower and it does not allow additional equipment to be added to a nonconforming tower. Under that BZA interpretation, equipment was added in 1996. Prior to that time, some equipment had been added to the tower before towers were regulated by the County. Ms. Thomas asked if staff investigated the issue of the Ntelos array being replaced by flush- mounted antennas, since it was staffs recommendation that all antennas be flush-mounted. She = wondered if the staff had discussed this suggestion with an engineer. Mr. Cilimberg said staff has not done that on any kind of proposal. There are no funds in the budget, or anyone on a retainer, to perform that work, although it has been mentioned before. Mr. Rooker asked about expanding the use of a nonconforming structure. Mr. Davis said the decision of the BZA in 1996 with the Ntelos antennas, determined that it was not expanding the use. He thinks that is debatable. Clearly, any structural alteration to the tower requires a special use permit. March 20, 2002 (Regular Night Meeting) (Page 10) Mr. Dorrier said the staff said in its analysis that approval of the permit with the recommended conditions would result in significantly changing the character of the district, but it is staffs opinion that = removal of the stand-off brackets would result in a change which would be desirable. He asked if staff found that what the applicant wants to do would change the character of the district. Mr. Cilimberg said with the condition recommended by staff to remove the stand-off bracketed antennas, it would be less of an impact. Staff did not find that changing the character would be detrimental to adjacent property if those conditions were imposed. Mr. Martin said staff found several things that were favorable to the request, and one issue that was unfavorable, and then there were six relevant considerations listed. He asked Mr. Cilimberg to mention those six items, and label them as being either favorable or unfavorable. Mr. Cilimberg said some of the six items are just facts, and are neither good nor bad. He said the site is within a designated Mountain Resource Area, and because of that fact, the County would not want any tower located in that area. Mr. Perkins asked about Finding No. 3 (There is already an established and reasonable use on this property). Mr. Cilimberg said that is a finding staff makes on all tower requests. This particular property can be used by-right in other reasonable ways. Staff has always used that finding so the Board can have the liberty to act as it feels best about the request. Mr. Davis said the intent of this finding is that there is a reasonable use for the property in the economic sense rather than the land use sense. Mr. Cilimberg said No. 4 cites the fact that the cables and wires would be located within the boundaries of the main structure. He said it was mentioned tonight that there may be an opportunity to darken and solidify the tower. No. 5 is an allowance that provides for an improved situation regarding the safety beacon in terms of its visibility. No. 6 is a finding of fact; there is no restriction on permitted uses because of the tower or ground equipment. Mr. Rooker said he would support this application with the conditions recommended by staff, and with the additional condition that was tendered by the applicant regarding the ECC testing and the Nextel antennae. He said there was also an additional condition suggested by staff regarding the color. Combining all of those things, there would be a win-win situation because the tower would probably be less visible than the existing tower. He does not think either of these towers would ever be approved as a new tower today. The question is whether giving the applicant the ability to lease three more slots on the tower furthers the Countys goals concerning visibility. He thinks that with the staffs recommended conditions, == that would be the case. The tower would be somewhat shorter, be darker, a little less narrow, but all of the antennas would be flush-mounted which reduces the most highly visible item on the tower today. Mr. Martin said with what the Board knows concerning the large array system, and what the company has said about its inability to get that array to be flush-mounted, if the Board adopts this as stated by Mr. Rooker, what does that actually mean, legally? Mr. Davis said they would be required to meet those conditions in order to reconstruct the tower. They would either have the option to do as the Board approved with that condition, or not go forward with the project. They would have to go back to the antennae owner and negotiate with them whether or not there was any reasonable terms that could be reached to have them flush-mount the antenna. If they couldnt reach those terms, they would have to abandon this project. = Mr. Martin asked if they abandoned the project because a condition on the approval was impossible to meet, would the tower be conforming or nonconforming at that point? Mr. Davis said the existing tower would remain nonconforming and, if the special use permit were approved, it would expire unless they exercised it by substantially starting the project within two years. Ms. Thomas said the array is the most visible thing. There are three panels on each of three arms. If they put each of those three panels close in, that might be a compromise. But, this Board does not have the technological knowledge to know what that compromise might be. She remembers back a few years to when the County did not know much at all about these panels. An applicant said the panels had to be a certain distance apart, but she had seen antenna panels at University Village which were much closer together. So, everybody conferred and said that actually was true. She said her faith in applicants being willing to volunteer that kind of information to the Board dissipated. She feels like the Board is stuck on A@ this question of the array; the Ntelos arms. Mr. Martin mentioned the last tower request before the Board where Ms. Thomas said there were too many towers around it, and it was the one that was too many. That night, several Board members A@ voted to approve that request. In this situation, if the Board does as Ms. Thomas has stated would it not be most likely increasing the chances that it would get at least one more tower to make up the difference? He thinks the Board would be in a situation where a year from now it would have to approve another tower. Mr. Rooker said if the Board were looking at a new application, it would not be for a 260-foot tower on top of a mountain. It would be something that would be in keeping with the towers that the Board has approved. He would rather approve two treetop towers located somewhere else, which basically look like a telephone poles in the woods, than to create a situation where there is a tower which is highly visible, nonconforming, is something which the Board would not approve today, and might be substantially increased in visibility. He thinks the darkness of the tower will increase its visibility. He said the only thing that creates any kind of a tradeoff is the Ntelos array in the middle. He thinks the Board should just concentrate on visibility. Is this a better visibility situation or a worse visibility situation? If this will enhance the Countys goals, he thinks the petition should be approved, but if approval does not enhance the = Countys goals, than it should not be approved. = March 20, 2002 (Regular Night Meeting) (Page 11) Mr. Dorrier said Mr. Rooker has indicated that having the tower darker will make it more visible. Mr. Rooker referred to a picture posted on the wall. He said if the antenna which is presently about two-thirds of the way up the pole were removed (the Ntelos antenna actually projects eight and one-half feet on each side of the tower, a seventeen-foot span) and the project were approved with a flush-mounted antenna, and they were able to go forward with the project, it would be a win-win situation. They would have accommodated additional carriers, they would be obtaining additional revenues, and the visibility situation would be no worse than at the present time. He said if the Board approves the request without that condition, it will basically be creating a worse visibility situation on that mountain. Mr. Martin said he agrees with a lot of Mr. Rookers logic, except for the very last statement. He = does not think the Board would make things worse. He (Mr. Rooker) may look at it and see that the right side is more visible than the left side, but to Mr. Martin lowering and removing that basket, then putting that stabilizer down lower in terms of someone driving by it (it can only be seen from Peter Jefferson Place on Route 250), would not make the tower on the right more visible than the tower on the left. As to the issue of conformity and nonconformity, it is an existing tower. There is no credible evidence that the tower will fall down in the next five or six years in a way so it cannot be replaced. Obviously, it can be replaced if it falls down due to no fault of the owner, so he cant think of a situation where the tower is not going to be there = five or more years from now. He thinks that tower will be there, and it would be there better, if it were shorter. At this time, motion was offered by Mr. Rooker, to approve SP-2001-038, American Tower, subject to the conditions recommended by staff, including the condition tendered by the applicant regarding the Nextel testing, and there was also a color recommendation made by the Planning Commission which did not work its way into the proposed conditions. Mr. Davis suggested that the Board talk about the conditions before the motion is seconded. Mr. Rooker said the conditions he is looking at are those recommended by staff, and there is a condition that the applicant suggested to solve the Nextel problem. Mr. Davis said there was also a suggestion that they would lower the uppermost two antennas. Then, in a list of suggested conditions from the applicant, he needs to understand the measuring of the flush-mounted antennas from the reinforcing structure rather than from the tower. He is not sure he understands that suggestion from the applicant. It appears that this makes the antennas tighter to the tower, so it may be favorable to the County. Mr. Rooker asked where this condition is written. Mr. Cilimberg said it is in a letter sent to the Board from Ms. Valerie Long dated March 13, 2002, in which there are proposed modifications to the conditions recommended by staff. He said they were attempting to have the measurement made against the outside of the new reinforcing structure, rather than from the existing tower which will be internal to that structure. The applicant is suggesting eight and one-half inches from the reinforcing structure rather than twelve inches from the existing structure. Ms. Thomas said she knows from experience with other tower applications that in recommendation 1(e) about the concrete pad being painted a dark brown in color, the word painted should be tinted. A@A@ Mr. Cilimberg referenced the applicant's letter of submittal, and said that with the exception of the last sentence in 2(c) it captures what refinements to the existing conditions would be necessary. Mr. Davis said there is one exception. In the applicants proposed Condition 1(f), instead of saying the tower =A reinforcement structure, he would suggest using the term facility. Mr. Cilimberg said the Planning @A@ Commission had suggested that rather than saying it not be painted a certain color, they suggested that the whole facility be painted dark brown, both the existing structure and the new reinforcing structure. This is condition 1(f). Mr. Davis asked if Mr. Cilimberg wanted the condition to stipulate that the tower be painted a certain color. Mr. Cilimberg said he heard the Board suggest using a color for these towers rather than what was recommended by staff. The condition would read: "The facility shall be painted dark brown unless otherwise expressly required by the FAA regulations. @ Mr. Cilimberg said Condition 1(b) talks about the safety lighting required by the FAA. Condition 1(d) has a grammatical change. Condition 1(e) refers to having the concrete pad be an earth-tone. Condition 2(a) refers to both basically the microwave dish and the FM antenna not being included. Condition 2(c) refers to where the panel antennas would be located related to the tower. He does not think the last sentence in that condition should remain if the Board is not going to allow the eight and one-half inches. Mr. Davis said that a Condition 2(e) would be added that would say: No antenna shall be located above A the 244-foot above-ground level height on the tower. He said the panel antennas are eight feet tall. The @ drawing indicates that the highest antenna would be at 236 feet so that condition would work. A Condition 2(f) would be added saying: No building permit shall be issued for a Nextel Partner antenna until a written A certification is obtained from the Emergency Communication Center that it will not unreasonably interfere with the proposed ECC 800-MHZ communication system. Mr. Davis said as a caveat, there is a Federal @ case which has been decided which says that a local governing authority is preempted from regulating frequency interference since that is within the exclusive command of the Federal Communications Commission. He said by tendering this condition, the applicant may have waived any objection to this condition, but there may still be some doubt about the validity to this condition in the future. Mr. Martin said he does not know if there will be a second to the motion, but since the Board has gone to the trouble of going through all of these conditions, he asked if he could ask a question of the applicant. Ms. Thomas said yes. A@ Mr. Martin asked what happens if the conditions in the contract with this carrier conflict. Ms. Long said American Tower has told her they have no leverage with Ntelos to require them to flush-mount their March 20, 2002 (Regular Night Meeting) (Page 12) antennas. They have a contractual obligation with them. They appeal to them to voluntarily reduce the set- off distance and flush-mount their antennas to soften their appearance. Ntelos is not willing to do that. That reflects many verbal conversations, not just written communication. Mr. Martin asked if Ms. Long knows the length of the contract. Ms. Long said it is an approximate 25-year contract. It is not that they are being difficult or just dont want to deal with the issue, but these = towers have to all be precisely located relative to one another. This facility has been on this site since 1995, and Ntelos has brought many applications to the County and received approvals. Their network is built-out. It exists and it is working. They are not willing to sacrifice their network performance. Mr. Rooker asked if anyone had offered them any monetary incentive to make a change. Ms. Long said she does not know of any such offer. Ms. Thomas said she has a feeling that a radio engineer could think of something in between what is being talked about, i.e., some way this site could work for the Ntelos array network, and yet not be as extreme in its visual impact. She assumes that is something that has not been investigated. Ms. Long said that is correct. Ms. Thomas said she is sure there must be a way to have this come out in a way that could satisfy both the visual impact and the needs of the Ntelos network. Ms. Long said this is also frustrating to her client. They worked hard to go the extra mile in every other matter. They are requiring all the new providers to flush-mount, but they resist doing it. They voluntarily offered to reduce the height of the tower. They worked today following Ms. Thomas request to get some of the new carriers lower down on the = facility. They are trying to get it right the first time to the extent possible. Ms. Long said American Tower will paint the tower whatever color the Board requires, but she is not certain brown is the appropriate color. There has been concern expressed that the opaque nature of the cables being internally rotated on the facility exacerbates the visibility. She is concerned that painting it brown will only add to that effect. She wonders if leaving it as it is, or painting it gray would be more appropriate and help it blend in with the background. Mr. Rooker asked the color of the cables. Ms. Long said they are black. Mr. Dorrier said that could be worked out with staff. Ms. Thomas said that is true if the Board leaves the condition as staff worded it, that it shall not be painted orange. If the Board actually says it is to A@ be brown, it has to be brown. Ms. Long said any painting of the tower has to receive final approval from the Federal Aviation Administration. Mr. Martin said the tower exists. The applicant is going to make what he considers to be improvements. If the Board approves the permit as stated in the motion, and if what Ms. Long has said is true, for the next 20 years they have no way of forcing that company to do as stated in the conditions, so in effect the Board will be saying the tower will stay as it looks now. If the request is approved, and there can be some way to force that company to change its policies so it does end up being flush-mounted antennas, then the County gains. It boils down to the Board hearing one thing, it is hoping something else is the case, but the Board has to vote now. He wants to see if there is some way the Board can say American Tower has to bring to the County, within a certain period of time, evidence that what they say is true. Mr. Rooker said he truly believes that if this application is approved with the conditions recommended by staff, they will find a way to work with Ntelos. They have not offered them any reduction in rent on the lease. They have given them no monetary incentive to make the change. Since Ntelos has a lease and is happy with it, why would they want to make a change? He thinks that if it doesnt work, there = might be some intermediate way of dealing with this situation, and they could always reapply for an amendment to the special use permit. Ms. Thomas said an alternative for the Board would be to call in somebody who can say what can be done with the Ntelos array that is different from what is seen in the representation, that still works. If the whole thing can be held up by Ntelos, and the action of Ntelos can keep the tower from being turned into one that has four of their competitors on its, they have no reason to want to change their array. She hates to have the disposition of this tower in the hands of one cell phone company which can be stubborn and stifle all of their competition. She would rather that the Board have somebody look at it and tell it if there is an alternative way. She said the Board does not have anyone on staff who can provide that answer. She asked if the Board is under any time constraint on this petition. Mr. Davis said the Board can defer action on this request in order to obtain that information or it can be deferred and the applicant asked to submit that type of information. Mr. Rooker said he thinks it would be wise for the Board to get information from its own consultant. Mr. Davis said that it has been determined to be a fairly significant expense. Mr. Martin said he understands what Ms. Thomas is saying, and understands her goal, and he agrees with both. However, he is not sure that hiring someone gets the Board closer to that objective in the sense that even if someone tells the Board what a company may or may not be able to do, there is still the existing 25-year contract. It still has 20 years on it. Even if some one told the Board it was possible, but only if a tower were added on each side, he thinks the Board would be paying a lot of money for information that does not help the Board make a better decision. He thinks Mr. Rookers motion accomplishes Ms. = Thomas objective better than paying someone to do it. If it is possible, there is incentive there for the = private sector to go ahead and do it. On the other thing, if they cant do it, the Board would effectively be = denying this request. March 20, 2002 (Regular Night Meeting) (Page 13) Mr. Rooker said there is nothing that would prevent them from coming back at a later time with additional information and asking for an amendment to the special use permit. Mr. Martin said if they can come back at any time, and bring the kind of information he was talking about, he is willing to go along with the motion. Mr. Rooker said they may find that they are able to work something out with Ntelos in the interim. Mr. Martin said he would second the motion. Mr. Davis said he would like to suggest adding a Condition No. 10 being the standard condition regarding bonding for removal of the tower if it is ever discontinued. He said the same wording that the Board has used on the last several permits can be used for this purpose. Mr. Rooker said he would include that suggestion in the motion. With no further discussion, Ms. Thomas asked for a call of the roll. The motion carried by the following recorded vote: AYES: Mr. Martin, Mr. Perkins, Mr. Rooker, Ms. Thomas and Mr. Dorrier. NAYS: None. ABSENT: Mr. Bowerman. (Note: The conditions of approval are set out in full below.) 1. The facility shall be designed, constructed and maintained as follows: a. The top of the tower shall not exceed an above ground level (AGL) height of two hundred sixty (260) feet, and a total height of 1029.12 feet above sea level (ASL). Within one (1) month after the completion of the tower installation, the applicant shall provide a statement to the Planning Department certifying the height of the tower, measured both in feet AGL and in elevation ASL; b. With the exception of the safety lighting required be Federal Aviation Administration (FAA) regulations, outdoor lighting shall be permitted only during maintenance periods. Regardless of the lumens emitted, each outdoor luminaire that is not required for safety shall be fully shielded as required by Section 4.17 of the Zoning Ordinance. The safety lighting shall use a type of shielding with ten (10) degrees cut-off to prevent downward lighting, similar to that described in the applicant's submittal, compatible with the examples of the "Fresnel Lens" provided in the applicant's submittal entitled "Overview for Zoning Considerations"; c. With the exception of a grounding rod and the safety lighting required by the FAA, no equipment shall be permitted to extend above the highest portion of the tower; d. All utility buildings and equipment cabinets within the facility shall be screened from the adjacent parcel located east of the site with a shade tolerant species of evergreen vegetation, subject to the approval of the Department of Planning and Community Development and the Landscape Planner; e. The new ground equipment cabinets shall be painted a dark brown in color, and the new concrete pad shall be tinted earth-tone, and shall be no larger than the specifications set forth in the attached plans entitled "American Tower Limited Partnership (Charlottesville VA-10109)", dated August 23, 2001, and revised on January 25, 2002; and f. Unless expressly required by FAA regulations, the facility color shall be approved by the Director of Planning and Community Development. Any future FAA requirement to paint the tower shall be documented and submitted to the Zoning Administrator for inclusion with the permanent file for this request; 2. Equipment shall be attached to the structure only as follows: a. The microwave dish currently attached at a height of one hundred ninety-eight (198) feet AGL or lower and the FM broadcasting antenna at one hundred eighty (180) feet AGL shall be removed from the tower; b. A whip antenna, not exceeding six (6) inches in diameter; c. Five (5) arrays of flush-mounted panel antennas, which shall not exceed eight and one-half (8-1/2) feet each in length and twelve (12) inches in width. None of the panel antennas shall project from the reinforcing structure beyond the minimum required by the mounting equipment, and in no case shall an antenna project more than eight and one-half (8-1/2) inches from the reinforcing structure; d. Each antenna and its associated mounting equipment shall be painted a color that matches that of the tower reinforcing structure; e. No antenna shall be located above the two hundred forty-four (244) foot AGL height on the tower; and f. No building permit shall be issued for a Nextel Partners antenna until a written March 20, 2002 (Regular Night Meeting) (Page 14) certification is obtained from the Emergency Communications Center (ECC) that it will not unreasonably interfere with the proposed ECC 800 MHZ communications system; 3. Prior to beginning the modification of the tower and its guy wires or installation of the new ground equipment cabinet pad, a tree conservation plan, developed by a certified arborist, specifying tree protection methods and procedures, and identifying any existing trees to be removed at this site shall be submitted to the Director of Planning and Community Development for approval. All construction or installations associated with expansion of the facility, including necessary access for construction or installation, shall be in accordance with this tree conservation plan. Except for the tree removal expressly authorized by the Director, the applicant shall not remove existing trees within two hundred (200) feet of the fenced facility site and guy wires, or the existing vehicular or utility access areas; 4. The personal wireless communications facility shall be disassembled and removed from the site within ninety (90) days of the date its use for wireless telecommunications purposes is discontinued; 5. The applicant, or any subsequent owners, shall submit a report to the Zoning Administrator by July 1 of each year. The report shall identify each user of the facility that is a wireless telecommunications provider; 6. The applicant shall provide adequate area for one (1) parking space; 7. The Engineering Department shall grant approval of an erosion and sediment control plan prior to the issuance of a building permit; 8. No slopes associated with construction 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. The applicant shall submit a revised set of site plans to the Department of Planning and Community Development. Prior to the issuance of a building permit for construction of the facility, Planning staff shall review the revised plans to ensure that all appropriate conditions of the special use permit and all applicable provisions of Section 5.1.40.b have been addressed with the final revisions of the construction plans; and 10. If the Zoning Administrator determines at any time that surety is required to guarantee that the facility will be removed as required, the permittee shall furnish to the Zoning Administrator a certified check, a bond with surety satisfactory to the County, or a letter of credit satisfactory to the County, in an amount sufficient for, and conditioned upon, the removal of the facility. The type of surety guarantee shall be to the satisfaction of the Zoning Administrator and the County Attorney. _______________ Agenda Item No. 8. SP-2001-038. American Tower Site No. 10109 Ch'ville - Shadwell (Signs # 66 & 67). Appeal of Planning Commission's denial of waiver of setback requirements. Mr. Cilimberg reminded Ms. Thomas that the Board needed to take some action on appeal of the Commissions denial of the waiver. = Ms. Thomas asked if the Board wished to discuss this matter further. Motion was offered by Mr. Martin to approve SP-2001-38 to grant a waiver of Section 4.10.3.1 of the Zoning Ordinance. Mr. Davis said it is actually the waiver associated with that special permit. The motion was seconded by Mr. Rooker. Roll was called, and the motion carried by the following recorded vote: AYES: Mr. Martin, Mr. Perkins, Mr. Rooker, Ms. Thomas and Mr. Dorrier. NAYS: None. ABSENT: Mr. Bowerman. __________ (Note: At 8:50 p.m. Ms. Thomas called for a five-minute recess. The Board reconvened at 9:00 p.m.) _______________ Agenda Item No. 9. SP-2001-058. Certified Environmental Drilling (Signs #21 & 22). Public hearing on a request to allow a well drilling/pump service business in accord w/Sec 10.2.2.31 of the Zoning Ord. TM19, P34, contains 3.25 acs. Located on Rt 604, approxi 1700 feet N from the intersec of Rt 664 & Rt 604. Znd RA. White Hall Dist. (Notice of this public hearing was published in the Daily Progress on March 4 and March 11, 2002.) March 20, 2002 (Regular Night Meeting) (Page 15) Mr. Cilimberg summarized the executive summary which is on file in the Clerks Office. He said this = is a request for a Home Occupation-Class B special use permit to allow for the operation of a well drilling/pump service business. The applicant would operate one drill rig with a support truck and one truck with a trencher trailer. Occasionally, light maintenance and repair on the equipment and trucks would be performed. The applicant would utilize a shed for inside storage of tools and supplies and a fenced area behind the shed for the storage of pipe and equipment. The applicant proposes no more than two employees at any given time on the site, which is permitted under the definition of a Home Occupation- Class B. Mr. Cilimberg said the property is located on Route 604 north of the intersection of Route 664 and Route 604. It is about a 3.75 acre site and it would not result in an increase in vehicular traffic. The operation hours would be approximately 8:00 a.m. to 7:00 p.m., Monday through Friday, with lesser hours during the wintertime. The applicant would be providing a service which is specifically utilized in the rural areas. There would be minimal visual or noise impact, as heavily wooded areas surround the site. Mr. Cilimberg said the staff recommended approval subject to four conditions. On February 12, 2002, the Planning Commission, by a unanimous vote, recommended approval subject to conditions, but reworded Condition No. 2. At this time, Ms. Thomas opened the public hearing and asked the applicant to speak. Mr. Bob Tingley said he has lived in this area for 15 years. He has been running a drilling and pump installation business there for 10 years. He has expanded a little bit, and gone beyond the limits of his original business license. That is the reason he is applying to upgrade his license and he needs a special permit. He has spoken to all of his neighbors and no one has any objection to his operating his business as he has done in the past. He has no intention to expand to a greater size. He worked with the Planning Commission adhering to all their regulations and criteria as far as setting up the shed and fence. All of his materials are stored behind that building. He would appreciate approval of the permit. With no one else from the public rising to speak, the public hearing was closed and the matter placed before the Board. Motion was offered by Mr. Perkins to approve SP-2001-058 subject to the four conditions recommended by the Planning Commission. The motion was seconded by Mr. Martin. Roll was called, and the motion carried by the following recorded vote: AYES: Mr. Martin, Mr. Perkins, Mr. Rooker, Ms. Thomas and Mr. Dorrier. NAYS: None. ABSENT: Mr. Bowerman. (Note: The conditions of approval are set out in full below.) 1. All outdoor storage shall be contained behind the fenced area as shown on the physical survey dated November 1, 1991, and shall not exceed the height of the fence. Outdoor storage of materials shall not be visible from Route 604; 2. No more than three (3) work-related vehicles, plus trencher trailer, shall be parked on the site at any given time (one drill rig, one support truck, and one truck with a trencher trailer); 3. Parking setbacks shall be established as fifty (50) feet from all property lines or rights-of-way; and 4. The tree line located on the southern and western boundary of the property shall be preserved to maintain a buffer from adjoining properties. _______________ Agenda Item No. 10. SP-2001-059. Calvary Baptist Church Addition (Sign #40). Public hearing on a request for construction of 4080 sq ft add'n onto an existing church, addit'l parking & relocation of driveway entrance on 2.997 acs, znd R-1. The driveway is to be aligned w/Southern Parkway. This permit would allow the use to become conforming and would allow the aforementioned expansion of the use. This proposal is being made in accord w/Sec 13.2.2 of the Zoning Ord. TM77, P43. Located on Avon St Extd across from Southern Parkway. Scottsville Dist. (Notice of this public hearing was published in the Daily Progress on March 4 and March 11, 2002.) Mr. Cilimberg summarized the staffs report which is on file in the Clerks office. He said the == request would allow approval of an addition to the existing church. It actually would bring the entire church under a special use permit. The property is located on Avon Street across from the intersection of Avon and the proposed Southern Parkway. It is a consistent request in the Development Areas with the intention for in-fill development. The alignment of the new entrance with the proposed Southern Parkway is a better, safer design than the existing entrance. He said the applicant does not plan to hook to public sewer at this time. There are adequate drainfields, and the Health Department has acknowledged that and would approve the expansion on the existing drainfield system. Mr. Cilimberg said both staff and the Planning Commission recommended approval subject to six conditions. He said it was mentioned in the Commission meeting that it was desired to have a condition specifically stating that anything beyond what is being proposed would necessitate an amendment to the March 20, 2002 (Regular Night Meeting) (Page 16) permit. At that time, any kind of expansion could require them to hook to public sewer. That is a given, with or without the condition. At this time, the public hearing was opened, and the applicant requested to speak. Mr. Dave Wyant said he is the engineer representing the church. He said the church now has to hold Sunday School in the kitchen and the sanctuary, and want to add 10 Sunday School rooms and a multi-purpose room. They will be using the same type of materials on the new building, the driveway will be aligned as mentioned, additional landscaping in the front will be added and there will be additional parking in the back of the church. He said that in eight years the church would probably connect to the public sewer system. He offered to answer questions. With no one else from the public rising to speak, the public hearing was closed, and the matter placed before the Board. Motion was immediately offered by Mr. Dorrier to approve SP-2001-059 subject to the six conditions recommended by the Planning Commission. The motion was seconded by Mr. Rooker. Ms. Thomas said she would like to point out the value of the Neighborhood Model in the comment in the staffs report on relegated parking. This is not a recommendation that staff would have necessarily =A@ made to the applicant in the past. Actually, staff would not have had the Comprehensive Plan basis to tell an applicant to move their parking to another part of the site. Roll was called at this time, and the motion carried by the following recorded vote: AYES: Mr. Martin, Mr. Perkins, Mr. Rooker, Ms. Thomas and Mr. Dorrier. NAYS: None. ABSENT: Mr. Bowerman. (Note: The conditions of approval are set out in full below.) 1. The church's improvements and the scale and location of the improvements shall be developed in general accord with the submitted preliminary site plan entitled, "Site Plan, Calvary Baptist Church," prepared by David Wyant, P.E., and dated January 4, 2002; 2. The total square footage of the building including the proposed expansion shall not exceed eleven thousand, five hundred (11,500) square feet; 3. Yards and setbacks for structures shall be in accord with the R-1 setbacks, as specified in Section 13.3 in the Zoning Ordinance, to be in effect on March 20, 2002. Parking areas shall be setback at least ten (10) feet from all property lines, except the southern portion of the property that abuts the Southside Shopping Center; 4. There shall be no day care center or private school on site without approval of a separate special use permit, or amendment to this permit; 5. VDOT approval of the proposed entrance aligning with the Southern Parkway must be granted prior to final site plan approval; and 6. A tree conservation plan for the rear forested area of critical slopes in accordance with Section 32.7.9.4(b) shall be submitted with the final site plan. It may only be disturbed under the condition of connecting to the available public sewer in the rear of the property. Following such activity, the slopes shall be reconstructed and replanted as deemed necessary to comply with engineering requirements and the approved final site plan. The tree conservation plan shall be subject to review and approval by the Planning Director. _______________ Agenda Item No. 11. Approval of Minutes: September 27 and October 3, 2001; January 9, January 16 and February 13, 2002. Ms. Thomas had read the minutes of February 13, 2002, and found a couple of minor typos, otherwise the minutes were in order. Mr. Rooker had read the minutes of January 9, 2002 (beginning with Item 23 on Page 28 to the end). He noted a couple of typos, otherwise the minutes were in order. Motion was offered by Mr. Rooker, seconded by Mr. Martin, to approve the minutes which had been read. Roll was called, and the motion carried by the recorded vote which follows: AYES: Mr. Martin, Mr. Perkins, Mr. Rooker, Ms. Thomas and Mr. Dorrier. NAYS: None. ABSENT: Mr. Bowerman. _______________ Agenda Item No. 12. From the Board: Matters not Listed on the Agenda. March 20, 2002 (Regular Night Meeting) (Page 17) Ms. Thomas said that if any item is to be reconsidered, this is the time to bring it up. Mr. Martin said maybe the Board should discuss it before a motion is made. Ms. Thomas said it can be a discussion under Other Matters, so it is appropriate to discuss it without a motion. Mr. Martin said he was not privy to the conversation that got this started, so he would like to hear what is being requested. Ms. Valerie Long said she approached the Chairman and the County Attorney both to advise and make the Board members aware that she intended to ask the Board to reconsider the motion (American Tower). She said she fully appreciates and understands the Board's position regarding the visibility of the Ntelos antennas. She had known that this would be a challenging issue. That is why her client worked hard to mitigate all other aspects of this facility to the extent it is physically, reasonably possible. She had honestly thought that flush-mounting the antenna mitigated any concern. She expressed and explained the background as to why the Board would care about that issue. Her client has worked very hard in the last 24 hours. They have some influence and some leverage over perspective tenants. They were able to strong- A arm those tenants to convince them that they needed to give on the location of their antennas. They @A@ were pleased to be successful in that, and were pleased that the Board accepted that. Ms. Long said her client has no leverage over Ntelos. The wireless telecommunications industry is extremely competitive. The entire intent of the Federal Communications statute is to create competition among all the providers, so as to ultimately drive down the cost of wireless telecommunications so that more members of the public can benefit from it. The way the tower is now, with Ntelos current mounting = structure, because they have more space between their antenna panels than do the other carriers, they are at a significant competitive advantage. They will continue to be at a competitive advantage over any new providers. They have absolutely no incentive to do anything to help their competition. If American Tower had any leverage, they would have had a solution at some point. They have been working very hard on this issue. Their application was filed in August, 2001. Ms. Long said she has spoken with her client since the vote earlier in the meeting, and his comment is that the amount of money that American Tower could offered Ntelos to create some incentive would be inconsequential in light of the detrimental impact that flush-mounting would have on their network and on the competitive advantage they currently have over the other wireless providers. If there were anything they could have done to reach a solution on this, she would brought that solution to the County. The reality is, with the way the motion was adopted, right now American Tower is stuck with the existing tower. They cannot move forward without requiring Ntelos to flush-mount. Her client cannot require Ntelos to flush-mount, so cannot move forward, so the offending Ntelos antennas will remain. By contrast, if the permit is granted with an exception for Ntelos, her client will voluntarily lower the height, will require everybody else to flush-mount, and will paint the tower. Mr. Martin asked how many providers are being added at this time. Ms. Long said it is three sets of new antennas. Mr. Martin asked how many more would be anticipated to be added in the future, or is this the build- out. Ms. Long said the way the conditions are drafted, it would be limited to that. Mr. Rooker said they could always come back and seek an amendment to this permit. Ms. Long said the Board would have to approve an amendment to allow additional collocation. Giving away vertical real estate, there is not a lot of space left. Mr. Martin asked if there would be space left so there could be additions. Ms. Long said if it were helpful to other wireless providers networks, or they were interested in collocating in another location on = the tower, American Tower would entertain any new tenants. They would have to decide whether to apply for an amendment to the permit, or make the applicant do that. Under this permit, American Tower is limited to six carriers. She said her applicant has endeavored to find a solution. They had hoped the solution would be that they mitigate visibility in other aspects to make up for the fact that they cannot make the Ntelos situation any better. Mr. Dorrier said Ms. Long has a good point. While the Board may want Ntelos to flush-mount their antenna, her leverage over Ntelos may be nonexistent and nil. So in effect, the Board is preventing American Tower from getting anything they want because of this problem. He does not know if this problem is significant enough to cause the whole application to fail. Mr. Rooker said this is a situation where the applicant bought a tower that had no antenna on it. Under the Countys regulations, it was questionable as to whether they would be allowed to have any = cellular antenna. As Mr. Davis indicated, he thinks the decision to allow them to have any antenna was wrong. Now, the Board has a situation where there is the 290-foot tower with three antennae on it, and they are asking for three more. Mr. Rooker said he does not think it is unreasonable to impose a condition that seeks every possible means to try and reduce the visibility in order to grant them three additional antennae when it is questionable legally as to whether they were entitled to any to start with. He does not think it is imposing an unreasonable restriction on them to require them to attempt to mitigate the Ntelos antenna. Mr. Martin said he agrees except for a couple of things. Aesthetically, the Board can disagree. He thinks the tower on the right is better than the tower on the left. Reasonable people can disagree because it is just aesthetics. The other way the County is benefiting is that the tower is being lowered. The County has all the new companies requesting that they be allowed to build new facilities, and this would be a collation facility that already exists and is already tall and ugly. The County would have three companies on this tower as opposed to having towers in another location, so he thinks the County is getting something. He March 20, 2002 (Regular Night Meeting) (Page 18) thinks this would be a better tower aesthetically. The alternative is that the Board keeps what exists now which looks worse, is taller, and these companies would most likely be requesting a facility somewhere else at some point in the future. Mr. Rooker said if ultimately they could not get this approved, they could seek an amendment to the permit. This tower has been in place for 40 years, and if they had to come back in three or four months, going through that process would not be a huge burden on the applicant. Mr. Martin asked why they would need to come back and say what they had just told the Board, unless Mr. Rooker thinks they are not telling the truth. Mr. Rooker said he is not saying they are not telling the truth, but he does not think they have offered Ntelos any compensation. Often people find there is a way to work something out that they have not tried or thought about. From his perspective, he would vote against this application without the removal of that antenna array because he thinks there is a tower that should never have had cellular antenna on it in the first place, and the County will end up with six antennae. He thinks the visibility impacts of a treetop located somewhere else in the middle of the woods may well be less than adding an additional antenna. Mr. Martin said there would still be the antennae. Mr. Rooker said there is still the tower. He thinks it becomes uglier when you solidify the thing and make it more visible. He said it is a judgment call. He personally would not support it just because he would not vote in favor of it unless they are able to remove the Ntelos array. Mr. Dorrier said the County policy is one that encourages collocation. Ms. Thomas said that is not true. That was the old policy, but the Board decided a long time ago that six treetop towers were in fact preferable to one really large tower. The first one was on a different mountain, but in general that has been the policy. She would like to ask a legal question about deferring this request. She realizes the Board thinks it would be too expensive for the County to come up with an opinion about whether it is possible for Ntelos to do what has been requested. Technically, she does not know if there is something less intrusive they could do. Mr. Cilimberg said staff would need to find out how to structure that kind of contract. Staff has no expertise in that field. He does not know what it will gain for the Board in this situation other than information. He thinks the bottom line is that Ntelos has the leverage. In really does not matter what is produced in terms of facts, they have the leverage. He does not know how that would be in terms of spending County dollars when the situation is what it is. Mr. Rooker said as far as the competitive advantage is concerned, different companies locate on the same towers all the time. Nextel will build a tower and allow Ntelos and three other people to go on it because they can make some money. You dont find people trying to squeeze people out of towers in the = cellular business. It would be a short-sighted approach to business to do that. He does not think Ntelos is getting the competitive advantage here that they would use to try and squeeze people out. The issue may be whether or not something can be offered economically that is worth their while to make the change. He does not think the Board will know for certain unless the applicant has an incentive to give it a try. Mr. Martin said he supported Mr. Rookers previous motion. Based on what he is hearing now from = the applicant, and also because Mr. Cilimberg said Ntelos has a competitive advantage, he will make a motion to reconsider the vote on SP-2001-038. That motion was seconded by Mr. Dorrier. Mr. Perkins said he has a couple of comments although he thinks it is water over the dam to say A@ the antennae should not be there to start with. They are there, and the Board has to accept that fact. He wrote down the pluses and minuses. For the plus side of granting this permit there will be some reduced height, the light will be changed, the County will control the color as far as the FCC will allow, there are screening provisions, and then there is removal of the microwave dish. What are the minuses of doing this? That is the question the Board should be looking at. Mr. Rooker said he agrees, he thinks the tower on the right, if the Ntelos array is left on, is a more highly visible tower on a mountaintop than what is there today. That is, of course, a judgment call. Mr. Perkins said it depends on lighting conditions, time of day and a lot of other things. It might be more visible at times, but not that visible at other times. Mr. Dorrier said he drove up there the other day, and he could barely see it. Of course, it was fogged in. Mr. Rooker said he thinks the tower will be more visible because at this time you can see through the tower, but when the tower is solidified, a more solid mass will be created. Mr. Cilimberg said he did not make his statement to sway the Board in terms of reconsidering the vote on this petition. It was simply a statement about the effect of having an analysis done independently. He said if this were a brand new proposal, that would be a different case of getting independent information. Mr. Rooker said if there were an engineer who stood up tonight and said he had worked with this March 20, 2002 (Regular Night Meeting) (Page 19) kind of antenna before and you can flush-mount them or a lot of other things to make them less visible and still maintain the power, he thinks the Boards decision tonight would be different. = Mr. Martin said the Board has no evidence to the contrary. What the Board is listening to is that there is a contract and American Tower has no ability to change that contract. That is the reason the antenna will not be flush-mounted, not because it is not possible technically. Mr. Rooker said if it were technically possible, and he could do it for x dollars, and they were A@ offered that kind of incentive to do it, they would probably do it. But, the Board does not have that kind of information in the record. He supports the motion to reconsider because if the majority of the Board feels like they want to vote, he will support that. At this time, Ms. Thomas called for a roll call. The motion to reconsider the previous motion carried by the following recorded vote: AYES: Mr. Martin, Mr. Perkins, Mr. Rooker, Ms. Thomas and Mr. Dorrier. NAYS: None. ABSENT: Mr. Bowerman. __________ Ms. Thomas said the floor is now open to any motion a member may wish to make on the petition. Mr. Martin said he would move to approve SP-2001-038 subject to all the conditions discussed before including the ones Mr. Davis discussed with the Board with the exception of the condition that forced Ntelos to use panels. Mr. Davis said the language Mr. Martin wants to add is the suggested language to Condition No. 2(c), the last sentence that was previously deleted. He would also suggest adding an additional provision to that stating: ... provided, however, that if these panel antennas are ever replaced, they shall be flush- A mounted, as specified above. Mr. Martin accepted that suggestion into his motion. @ Mr. Rooker asked how that condition reads now. Mr. Davis said the sentence that is added back will read: Notwithstanding the foregoing, the panel antennas mounted at 206 feet AGL shall not project A more than eight feet and one-half inch from the reinforcing structure, provided, however, if these antennas are replaced, they shall be flush-mounted as provided above. @ Mr. Martin asked if the Board can speak to the contract also, so if they are ever replaced, Ntelos could not renew the contract under the same conditions. Mr. Davis said he does not think the Board is able to do that. He does not know the life of these antennas, but if they have to make the financial decision to replace these antennas for reasons other than catastrophe, they will have to comply. Mr. Rooker said with that condition he will support the motion. He thinks the County would be better off. He then seconded the motion. Ms. Thomas said this is the second time she feels the Board has made a decision based on lack of information. This is where the Board was when tower applications started being received. At that time, the Board had applicants saying things the Board had no way of knowing if those statements were right or wrong. It was through a volunteer who came, and never charged a penny, who gave the Board a lot of information and the backbone to argue with, and the information to effectively change what it was being presented with. If the Board had known more about the ability to split the use of panels when it was discussing the fourth tower, the Board could have decided if the fourth company could go on to one of the other existing three towers. The Board did not have the technical knowledge, and tonight the Board does not have the technical knowledge to know if there is an alternative to that array. She thinks the Board could make a better decision if it had the technical ability to look at these. When the Board adopted the Wireless Policy, she thought the Board would be able to get a contract with someone who could be used in this type of situation. The Board did not do that, but it was discussed. She thinks the Board has now been burned A@ twice by not having that information. Since the Board has just been talking about the budget, and she knows it has no money for such things, she is concerned about bringing it up, but she cant let this go by = without expressing her frustration. Mr. Perkins said this is also a legal question. Ms. Thomas said if the Board had the technical knowledge of whether it was possible, it would know better how to deal with the legal issue. Mr. Perkins said it is probably possible because almost anything is, but it all comes down to dollars and cents, and the contract that they have. Mr. Rooker said if an engineer stood up and said he worked with this kind of antenna all the time, and that array could be replaced with something that is flush-mounted, or almost flush-mounted, and get the same power, the feeling about whether or not to impose this condition might change dramatically. Mr. Martin said he thinks that in this motion the Board is assuming that they can, because it is saying it cant be replaced with anything except flush-mount. The Board is assuming that the technology = March 20, 2002 (Regular Night Meeting) (Page 20) exists. The Board is just going along with the problem of the contract. Mr. Rooker said there are people in the community that could probably be put on retainer for a very small amount, who would give a certain number of hours of time. It is something he thinks the Board should consider. Mr. Martin said the Board previously had a long discussion on this subject so if someone wants to put it on a future agenda for another discussion, he is willing. Ms. Thomas said it is incumbent to bring up the subject when the Board is discussing budget and expertise. Mr. Davis said he would like to restate the language he added so the Clerk has some clarity: He would suggest adding the following language: ... provided, however, if the panel antennas are replaced at A any time, they shall be flush-mounted as provided above. @ Ms. Thomas called for a roll call, and the motion carried by the following recorded vote: AYES: Mr. Martin, Mr. Perkins, Mr. Rooker and Mr. Dorrier. NAYS: Ms. Thomas. ABSENT: Mr. Bowerman. (Note: The conditions of approval are set out in full below.) 1. The facility shall be designed, constructed and maintained as follows: a. The top of the tower shall not exceed an above ground level (AGL) height of two hundred sixty (260) feet, and a total height of 1029.12 feet above sea level (ASL). Within one (1) month after the completion of the tower installation, the applicant shall provide a statement to the Planning Department certifying the height of the tower, measured both in feet AGL and in elevation ASL; b. With the exception of the safety lighting required be Federal Aviation Administration (FAA) regulations, outdoor lighting shall be permitted only during maintenance periods. Regardless of the lumens emitted, each outdoor luminaire that is not required for safety shall be fully shielded as required by Section 4.17 of the Zoning Ordinance. The safety lighting shall use a type of shielding with ten (10) degrees cut-off to prevent downward lighting, similar to that described in the applicant's submittal, compatible with the examples of the "Fresnel Lens" provided in the applicant's submittal entitled "Overview for Zoning Considerations"; c. With the exception of a grounding rod and the safety lighting required by the FAA, no equipment shall be permitted to extend above the highest portion of the tower; d. All utility buildings and equipment cabinets within the facility shall be screened from the adjacent parcel located east of the site with a shade tolerant species of evergreen vegetation, subject to the approval of the Department of Planning and Community Development and the Landscape Planner; e. The new ground equipment cabinets shall be painted a dark brown in color, and the new concrete pad shall be tinted earth-tone, and shall be no larger than the specifications set forth in the attached plans entitled "American Tower Limited Partnership (Charlottesville VA-10109)", dated August 23, 2001, and revised on January 25, 2002; and f. Unless expressly required by FAA regulations, the facility color shall be approved by the Director of Planning and Community Development. Any future FAA requirement to paint the tower shall be documented and submitted to the Zoning Administrator for inclusion with the permanent file for this request; 2. Equipment shall be attached to the structure only as follows: a. The microwave dish currently attached at a height of one hundred ninety-eight (198) feet AGL or lower and the FM broadcasting antenna at one hundred eighty (180) feet AGL shall be removed from the tower; b. A whip antenna, not exceeding six (6) inches in diameter; c. Five (5) arrays of flush-mounted panel antennas, which shall not exceed eight and one-half (8-1/2) feet each in length and twelve (12) inches in width. None of the panel antennas shall project from the reinforcing structure beyond the minimum required by the mounting equipment, and in no case shall an antenna project more than eight and one-half (8-1/2) inches from the reinforcing structure. Notwithstanding the foregoing, the panel antennas mounted at two hundred six (206) feet AGL shall not project more than eight feet and one-half inches (8-1/2) from the reinforcing structure. Provided, however if the panel antennas are replaced at any time, they shall be flush-mounted as provided above; d. Each antenna and its associated mounting equipment shall be painted a color that matches that of the tower reinforcing structure; March 20, 2002 (Regular Night Meeting) (Page 21) e. No antenna shall be located above the two hundred forty-four (244) foot AGL height on the tower; and f. No building permit shall be issued for a Nextel Partners antenna until a written certification is obtained from the Emergency Communications Center (ECC) that it will not unreasonably interfere with the proposed ECC 800 MHZ communications system; 3. Prior to beginning the modification of the tower and its guy wires or installation of the new ground equipment cabinet pad, a tree conservation plan, developed by a certified arborist, specifying tree protection methods and procedures, and identifying any existing trees to be removed at this site shall be submitted to the Director of Planning and Community Development for approval. All construction or installations associated with expansion of the facility, including necessary access for construction or installation, shall be in accordance with this tree conservation plan. Except for the tree removal expressly authorized by the Director, the applicant shall not remove existing trees within two hundred (200) feet of the fenced facility site and guy wires, or the existing vehicular or utility access areas; 4. The personal wireless communications facility shall be disassembled and removed from the site within ninety (90) days of the date its use for wireless telecommunications purposes is discontinued; 5. The applicant, or any subsequent owners, shall submit a report to the Zoning Administrator by July 1 of each year. The report shall identify each user of the facility that is a wireless telecommunications provider; 6. The applicant shall provide adequate area for one (1) parking space; 7. The Engineering Department shall grant approval of an erosion and sediment control plan prior to the issuance of a building permit; 8. No slopes associated with construction 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. The applicant shall submit a revised set of site plans to the Department of Planning and Community Development. Prior to the issuance of a building permit for construction of the facility, Planning staff shall review the revised plans to ensure that all appropriate conditions of the special use permit and all applicable provisions of Section 5.1.40.b have been addressed with the final revisions of the construction plans; and 10. If the Zoning Administrator determines at any time that surety is required to guarantee that the facility will be removed as required, the permittee shall furnish to the Zoning Administrator a certified check, a bond with surety satisfactory to the County, or a letter of credit satisfactory to the County, in an amount sufficient for, and conditioned upon, the removal of the facility. The type of surety guarantee shall be to the satisfaction of the Zoning Administrator and the County Attorney _______________ Agenda Item No. 13. Adjourn to March 25, 2002, 1:30 p.m. With no further business to come before the Board, at 9:40 p.m., motion was offered by Mr. Martin, seconded by Mr. Rooker, to adjourn this meeting until March 25, 2002, at 1:30 p.m. Roll was called, and the motion carried by the following recorded vote: AYES: Mr. Martin, Mr. Perkins, Mr. Rooker, Ms. Thomas and Mr. Dorrier. NAYS: None. ABSENT: Mr. Bowerman. ________________________________________ Chairman Approved by the Board of County Supervisors Date: 06/05/2002 Initials: LAB