HomeMy WebLinkAboutBOA minutes 011116 Approved 10/10/2016
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MINUTES 1
BOARD OF ADJUSTMENT 2
JANUARY 11, 2016 3
PUBLIC HEARING 4
5
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MEMBERS PRESENT: Samantha Cabe (Chair) 7
Karen Barrows (Vice-Chair) 8
Matt Hughes, Alternate Member 9
Barry Katz 10
Susan Halkiotis 11
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STAFF PRESENT: Michael Harvey, Current Planning Supervisor 13
Patrick Mallet, Planner II 14
Elaina Cheek, Board Secretary 15
James Bryan, Staff Attorney 16
Anne Marie Tosco, Staff Attorney 17
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AGENDA ITEM 1: CALL TO ORDER 19
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Samantha Cabe called the meeting to order. 21
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AGENDA ITEM 2: CONSIDERATION OF ADDITIONS TO AGENDA 23
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Matt Hughes added an additional item to include appointment of Board Secretary, Elaina Cheek. 25
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MOTION made by Susan Halkiotis to include appointment of Board Secretary, Elaina Cheek. Seconded by 27
Karen Barrows and Barry Katz. 28
VOTE: Unanimous 29
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AGENDA ITEM 3: APPROVAL OF MINUTES 31
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No amendments to minutes. 33
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MOTION made by Samantha Cabe. Seconded by Susan Halkiotis. 35
VOTE: Unanimous 36
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AGENDA ITEM 4: READING OF PUBLIC CHARGE 38
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Karen Barrows read the public charge 40
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The Board of Adjustment pledges to the citizens of Orange County its respect. The Board asks its citizens 42
to conduct themselves in a respectful, courteous manner, both with the Board and with fellow citizens. At 43
any time should any member of the Board or any citizen fail to observe this public charge, the Chair will ask 44
the offending person to leave the meeting until that individual regains personal control. Should decorum fail 45
to be restored, the Chair will recess the meeting until such time that a genuine commitment to this to this 46
public charge is observed. All electronic devices such as cell phones, pagers, and computers should please 47
be turned off or set to silent. 48
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The Board of Adjustment is a quasi-judicial administrative body established in accordance with the provisions of local 1
regulations and State law to perform specified functions essential to the County’s planning program. Action(s) taken 2
by the board are based solely on competent, substantial, and material evidence presented during a previously 3
scheduled and advertised public hearing on a specific item. As detailed within Section 2.12.2 of the UDO the Board 4
chair reserves the right to exclude evidence and testimony that is deemed: ‘incompetent, irrelevant, immaterial, or 5
unduly repetitious’ and therefore fails to reasonably address the issues before the Board of Adjustment. While it 6
should be noted there is no time limit on the presentation of evidence, the Chair asks that the presentation of 7
evidence be consistent with established policies, rules of procedure, and acceptable levels of decorum to ensure a 8
fair and equitable hearing for all parties. 9
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AGENDA ITEM 5: CONSIDERATION OF AN AMENDMENT TO A CLASS B SPECIAL USE PERMIT 11
APPLICATION 12
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In accordance with Section(s) 2.7 Special Uses, 5.2.1 Table of Permitted Uses, 5.3.2 Application of Use 14
Standards – Special Uses, and 5.10 Standards for Telecommunication Towers of the UDO, Crown Castle 15
International is requesting the modification of a previously issued Class B Special Use Permit (SUP), 16
allowing for the development of a telecommunication tower, to change vehicular access to same from 17
Landau Drive to Old Oak Place. 18
The parcel subject to this application, currently listed as being owned by Perry Sloan Trustee, is identified 19
utilizing Orange County Parcel Identification Number (PIN) 9883-17-7293, is zoned Rural Residential (R-1) 20
and has frontage along Old Oak Place (SR 2268). There is no physical street address currently assigned to 21
this parcel (hereafter ‘the property’). 22
As detailed within the application, the applicant is proposing to abandon the existing driveway through 23
Landau Drive and create new vehicular access to the existing tower through the identified property with a 24
driveway off of Old Oak Place. 25
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Michael Harvey swore in the following individuals: 27
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Jerry Bouche 29
Graham Herring 30
Paul Parker 31
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Michael Harvey: Before we begin we would to ask the County Attorney, Mr. Bryan, if he has any initial 33
comments before we move forward… I didn’t know if you had something about proc ess before I begin or 34
not. 35
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James Bryan: So, each time it seems there’s always something a little different and this one is a little 37
different. This is a modification of a SUP, not just a standard SUP. It’s a little unclear what that process is. 38
How we normally do it is we have the submission standards and the standards of evaluation all jumbled 39
together. Both in UDO and in the packets. There is a part of the UDO that says if you’re going to modify a 40
SUP the procedure is to give a new site plan and a narrative of that. It doesn’t say whether that replaces or 41
is in addition to the submittal requirements. There’s different ways that the staff and applicant might 42
encourage you. I’ll try my best to give you my interpretation of what it is… Now you might be abl e to look at 43
the prior submittal and if it’s the same drawing that’s fine; however, you might have a scenario where the 44
submittal requirements have changed so, if it’s something 20 years ago we didn’t require and now we do 45
they have to show it at some point. That might become an issue. The other part of it is, what exactly are 46
you evaluating? I believe that it’s clear that it’s the same evaluation. This is a SUP for a telecommunication 47
power facility but, there’s a whole bunch of standards that have to appl y. They have to meet those today as 48
they met them 20 years ago or whenever. Even though the modification might be small, it might be what 49
you deem irrelevant to it, they have to meet all the standards as they did in the past. 50
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Samantha Cabe: So would it be safe to say that the standard is to evaluate this modification together with 2
the original applications so it meets all the standards as modified? So the SUP as modified must meet the 3
standards that we apply from section 5.3 of the UDO; is that safe to say? 4
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James Bryan: I’d say all of that’s correct but… There’s also specific standa rds of the evaluation for telecom 6
towers… I think the crux of it is 5.10.8 (B) (4) and those are standards of evaluation, there’s 23 standards of 7
evaluation for telecom facilities. 8
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Samantha Cabe: Ok, thank you. 10
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Michael Harvey: If that’s all, I’ll quickly move through staff reports and turn it over to the applicant. So we 12
have an agenda attachment at the beginning of page 51; within this packet you have staff’s abstract, you 13
have a property vicinity map on page 58 and on page 59 is the application package, beginning on page 81 14
you have notification materials…inaudible… Under separate cover was an 11x17 copy of the site plan. As 15
you’ll know from various e-mails to address some of James’ concerns we’ve produced additional material 16
for you, including a revised attachment 4 which is the SUP findings and fact which I will walk you through 17
from staffs standpoint. A supplemental packet of information that begins on pages 200 -341, and this is a 18
copy of the original SUP that was reviewed and acted upon on April 8, 1996. This is … finds on page 240. 19
We also have structural analyses that have been prepared on this tower dealing with change out and 20
existing independence. 21
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So Madam Chair, what I ask first is that the provided abstract that you would have all been sent since 23
apparently page 52 wasn’t included in the packet you were sent, as well as the supplemental material again 24
pages 200-341, revised attachment 4 and a copy of the UDO all be entered into the record. 25
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MOTION made by Susan Halkiotis. Seconded by Karen Barrows. 27
VOTE: Unanimous 28
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Documents admitted to record. 30
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Michael Harvey: Thank you. Very quickly I would like to turn it over to the applicant. What is occurring with 32
this request, as detailed within my abstract and also detailed within the applicant’s proposal, this is an 33
existing tower facility that was permitted 1986 by the BOA of the issuance of a Class B SUP. It is a 34
maximum 160 foot tall telecommunications tower. The original access and the approved site plan came 35
through Landau Drive, allowing it affording access to this property. As indicated by the applicant due by 36
potential modification development sale of property they chose to secure a more direct, more consistent, 37
access route and have chosen to come off Old Oak Place, an existing, publicly maintained roadway to get 38
access to the tower. The site plan submitted shows proposed location of the easement and discusses the 39
development of the driveway. Obviously this is coming off an existing state maintained road so it would be 40
handled as any other residential driveway. One comment on making the onset before we get into depth; 41
one concern that was raised at the neighborhood meeting was, is this a precursor to future and furt her 42
development of this parcel? And the answer is no. If this modification is approved and if this driveway is 43
moved this does not grant the development authority to this property other than allowing this easement as 44
shown and there’s nothing on the site plan affording access to telecommunication tower. So this is not a 45
precursor for subdivision. This is not a precursor for any further development on this property. This is just 46
merely to grant easement to get the tower access. If the undeveloped 24 -acre parcel is developed, that 47
easement will have to be preserved to maintain or the applicant will have to come back through and do 48
another modification to address access. 49
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Just going through the abstract; the area is predominantly single -family residential development, with large 2
scale parcels of property. This particular parcel of property is in farm use; it’s actually encumbered by a 3
timber deed and was recently timbered. Consistent with that deed harvest the existing vegetation on the 4
property. There isn’t any water sewer service in the area but, I will point out that this is a driveway so no 5
water sewer is necessary. There will be no septic or well associated with the extension of this driveway. To 6
the North you have Interstate-85. You have utility easements running through the northern portion of the 7
property. Electrical utility lines and again, we have single-family residential here, we have residential here 8
to the East and there’s large tracks to the South and also undeveloped property. So what’s being requ ested 9
is to encumber this particular parcel of property under the same SUP as the existing tower for means of 10
allowing ingress/egress. To do this under the ordinance requires a modification. Why? You’re changing a 11
conditional of the original permit that had access off of land out here and encumbering a separate parcel of 12
property with a drive access easement. That requires a modification. Staff does not have a legal ability to 13
allow for a minor change to allow that to occur because this parcel here is now g oing to be encumbered by 14
some of the provisions of this SUP. 15
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The applicant was required, and again I’m focusing on pages 59 -80 to submit the appropriate application 17
site plan. We’ve required that they complete an environmental assessment application. Th ey have provided 18
a narrative outline of the rationale behind this move, which I’ll let them get into in a moment. In concluding 19
staff comments, this is a modification to an existing drive location; there will be no change to the tower. You 20
approving this request if that is your choice to do this evening will not impact or require any modification to 21
the actual tower itself. The tower’s not going to be increased in height, it’s not going to increase the number 22
of antennas that can be put on it; you’re just allowing for modification to the drive access point. You’re 23
approval does not grant the applicant any authority to engage in any land development, they still have to go 24
through a permitting process specific with the DOT with Orange County Erosion Control as applicable, 25
especially with a stream crossing here. And we’ll talk about conditions at an appropriate time in a minute 26
but, I want to remind the board that if you see fit based on the competent material evidence and testimony 27
entered into the record this evening to grant this modification, the applicant still has obligations to go 28
through a permit and review process. Now, primarily, that’s going to be with Orange County Erosion Control 29
but you’ll note that the DOT will be involved as well as Orange County’s Fire Marshal’s office. 30
31
We have found several components of the comprehensive plan , as noted on page 54, that we believe 32
support the request. You will note, again on page 54, that staff held the required neighborhood information 33
meeting, for all SUP’s we’re required to hold a neighborhood information meeting, this meeting was held on 34
November 30. We have provided a summary of the comments. We also forwarded a copy of an email that 35
was sent not only to all those that attended the neighborhood meeting but to the applicant as well, so they 36
could understand what some of the comments were. The biggest concern was how the applicant handles 37
the stream crossing and the short and sweet answer is that they’d have to get the appropriate permit but, 38
stream crossings are permitted. They would have to mitigate any potential environmental harm that they 39
would do to the erosion control permitting process. There were questions about how big the driveway would 40
be, there were a lot of concerns about the property being cleare d and I will just reiterate for the record the 41
clearing that has already occurred was external to this request. It was actually being done consistent with a 42
previously recorded timber deed. 43
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There was concern expressed by several neighbors over the condition of the road. We have reached out to 45
the DOT who indicated they will investigate whether or not there needs to be maintenance done on Old 46
Oak Place. Unfortunately, all I can testify to is that in talking with the DOT they don’t see the addition of the 47
driveway as creating any major change in existing traffic patterns. I will state for the record that the addition 48
of the driveway is external to any internal neighborhood road maintenance concerns. And I will let the 49
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applicant address the number of times ve hicles will be expected to service the area. They don’t believe it 1
will be more than once or twice per month. 2
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Several residents had asked staff to re-explain the general findings of fact, that’s section 5 .3.2; whether or 4
not the use is in harmony with th e area, maintains or enhances adjacent property and will promote the 5
public health, safety and general welfare. Questions were asked about what types of vehicles will be 6
accessing the site, that information is in attachment 2 and you can see staff’s respon se on page 7
*inaudible*. There were questions and concerns on whether or not this would require an alteration to the 8
tower; it won’t. There was a question posed whether or not the proposed driveway would require installation 9
of streetlights; I will state that the UDO that’s been entered into the record will not require streetlights. The 10
site plan does not show streetlights so there will not be any installed along the driveway. In order to do so 11
the applicant would have to go back through the modification pro cess and ask you all for permission and 12
supply a lighting plan. There was a concern after the conclusion of the meeting of whether or not the 13
proposed relocation of the driveway would somehow require the existing telecommunication tower to be 14
illuminated. Their answer is it will not. Towers only have to be illuminated if they’re 200 feet or taller to 15
comply with both FCC and FAA regulations. 16
17
Local residents were notified of our neighborhood meeting via certified mail as the ordinance required at 18
the time. The neighborhood meeting was held. We have provided you a copy of those certificates as well 19
as my testimony that we did send everything out as we were required to do. Review of the SUP’s carried 20
out is a quasi judicial format, meaning you’re basing decision on the sworn competent material evidence 21
and testimony entered into the record. The applicant as you all know has the burden of establishing through 22
evidence submission of material that they’ve implied with the code. Those in opposition also have the s ame 23
burden of showing you how it won’t comply with the code. We have an incredibly detailed set of findings in 24
order to address some of the attorneys concerns and I will, at the appropriate time, walk you through page 25
by page of those findings and the info rmation that is available in the record that we have entered in the 26
record in order to provide you the justification of how staff reached their conclusions. 27
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Unless there are any specific questions for me I’d like to turn it over to the applicant. 29
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Henry Kampen: Good evening. My name is Henry Kampen and my address is 301 Fayetteville Street in 31
Raleigh and along with my colleague Merrock Parrot we represent Crown Castle and have worked with Mr. 32
Harvey and appreciate his assistance through this process. We have 2 witnesses to offer this evening to 33
give brief testimony about this project. First is Paul Parker and the second is Graham Herring. I’ll ask Mr. 34
Parker if you can come forward… 35
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Paul Parker: Good evening Board. My name is Paul Parker. I’m employed as real estate specialist with 37
Crown Castle. I’ve been employed at Crown Castle for 4 years, I’m about to have 25 years’ experience in 38
telecommunications siting industry. This SUP modification is to alter the site access to the existing cell 39
tower, and that’s all we’re doing. We’re not raising the tower, we’re not doing anything else to the tower, 40
we’re not putting lights or anything else. New site access is necessary because the current access 41
interferes with the land owner’s long term plan for that property so, we’ve found an alternate access that 42
works. As such, the new site access is proposed across a neighboring parcel. Briefly address each of the 43
required findings of fact under the ordinance except for the impact value which will be addressed by 44
Graham Herring. The use will maintain or promote the public health, safety and general welfare is located 45
where propose and develop and operating according to the plan as submitted. Traffic to the site will not 46
substantially increase. The telecommunications facility is not staffed daily and will only be accessed on an 47
average monthly basis. The telecommunications facility generates less traffic than a single family home, 48
therefore, it’s traffic impacts are minimal. The only earth work done on the site will be to cr eate the 49
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proposed 15 foot wide gravel access road across the site in adjacent land and parts on number 1
9883177293. The applicant has an executed easement agreement which is recorded with the adjacent 2
property owned. With respect to harmony; with the surrou nding area in compliance with the comprehensive 3
plan the location and character of the use will largely remain the same as it was approved in 1996. Hence, 4
no tower will be raised, just an access road we’re trying to get to the tower site. There will not be an 5
increase in traffic with the site. Between 2001 and 2015 there are approximately 26 trips by Crown service 6
technicians to the tower. That amounts to approximately 2 trips a year. So, with respect to this use being in 7
harmony with the area the same factors that led the Board in 1996 will remain applicable with the grant of 8
this request. With respect to the method and adequacy provisions of sewage disposal facilities, solid waste, 9
and water there will be no negative impacts to the provisions of services a nd utilities, soil, erosion and 10
sediment or public community or private water supplies. We don’t supply water to the tower site. We do 11
supply electricity to the site, that’s it. Crown will obtain all necessary soil and erosion permits as a part of 12
the zoning compliance permitting requirements of the county after this request is approved. With respect to 13
method and adequacy of the provision police, fire, and rescue squad protection the site is appropriately 14
located to be served by police, fire, and rescue services. As indicated in the staff report Orange County 15
Emergency Services and the Sheriff’s Offices have indicated the project can be served. With respect to the 16
method and adequacy, vehicular access to the site and traffic conditions around the site, the change in the 17
access road location will not result in an increased traffic to the site. Again, that would be approximately 2 18
visits to the site per year by Crown employees. Does anybody have any questions? 19
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Henry Kampen: One question, just to be clear… My understanding that Crown’s not proposing a single 21
solitary change to the existing tower… Is that correct? 22
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Paul Parker: That is correct. The only change is that we are adding additional foliage and landscaping 24
around it. 25
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Michael Harvey: Mr. Parker, you may have said this but I didn’t hear it. Would you please state if you were 27
sworn? 28
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Paul Parker: I am Paul Parker. Raleigh, North Carolina, and I am sworn. 30
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Michael Harvey: Thank you. 32
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Barry Katz: You are going to move the gate? 34
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Paul Parker: We will have a gate at the… 36
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Barry Katz: From one side to the other? 38
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Paul Parker: Yes… This will be an extremely secure site, as all of our sites are. From where we come off of 40
the public right away there’s going to be a gate and then when we exit the Perry Sloan parc el there’s going 41
to be another locked gate there. And then, on either side there’s going to be an 8 foot chain link fence with 42
razor wire at the top. 43
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Barry Katz: Will the gate be after the turn or at the turn? 45
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Paul Parker: The gate is proposed to be, it should show it on the site plan… 47
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Samantha Cabe: Right at the edge of the state access. 49
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Paul Parker. I’m sure that DOT is requiring apron to be put down and then just past the apron we’ll have 16 2
foot wired fence. 3
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Michael Harvey: For the record, it’s sheet C-1a and then sheet C-3 at the site plan. 5
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Henry Kampen: Anything else for Mr. Parker? Graham Herring… Please state whether you were sworn and 7
your name. 8
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Graham Herring: Madam Chair and members of the Board, my name is Graham Herring. 8052 Grey Oak 10
Drive, Raleigh, North Carolina. I am a licensed North Carolina real estate broker… 11
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Henry Kampen: Excuse me, Mr. Herring, would you state for the record whether you’ve been sworn in or 13
not? 14
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Graham Herring: I have been sworn… Licensed North Carolina real e state broker with a development 16
background for 35 plus years. I was engaged to conduct an analysis to determine whether the proposed 17
site access road will maintain or enhance the value of the contiguous properties. I’ve prepared a report of 18
my analysis which has been distributed to you and marked as application hearing exhibit 1, I believe… In 19
preparing this analysis I have reviewed the application materials and site plans and I’ve personally been to 20
the site for the purpose of inspection of the proposed fa cility. And to look at the contiguous properties and 21
other properties within the Old Oak Place development. I also analyzed historical data on a number of visits 22
of the cell tower for the period between 2001 and 2015. Crown has … anybody as far as their te chnicians 23
or contractors that enters the existing facility has to contact them at an 800 number and there’s also 24
electronic security where they keep up the record of all entries and time and etcetera. Between 2001 and 25
2015 there were 26 visits to the site certified through Crown Castle Network Operation Center, that again 26
amounts to approximately 2 trips per year. Obviously, far fewer trips than the average single -family home 27
would have and on such an occasion. The proposed construction would take approxima tely 60 days and 28
the interior strings of Old Oak Place develop will be kept and maintained in clean condition during the 29
process of the construction. In addition, the new gravel access road will be shielded by new plantings and 30
portions and should also, with that and the fencing, cut down on any visibility into the new access road. In 31
my professional opinion, this use will maintain or enhance the value of contiguous property. I’ll be happy to 32
answer any questions that you have with regard to my testimony. 33
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Barry Katz: You mentioned it would take approximately 2 months to build this road in… 35
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Graham Herring: Weather permitting… 37
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Barry Katz: Of course. This seems to be some indication that the condition of Old Oak Place is not the best, 39
that it already has some deterioration and I think there’s been some concern that the construction vehicles 40
going in during that time would further deteriorate the conditions of Old Oak Place. So can you characterize 41
the types of vehicles that might be going in and out during t his construction, and whether or not there’s 42
anyone that could have a professional opinion about whether this would in fact further degrade the quality 43
of the roads; and if there’s some way to address that potential? 44
45
Henry Kampen: I think that Mr. Katz … that Mr. Parker can answer the question better, if that’s alright? 46
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Paul Parker: The trucks that will be coming in during construction; you’ll have a bobcat and regular heavy 48
construction for maybe 60 days. We’re pushing for 30, and so after that you’re ta lking about a regular 49
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Dodge pick-up truck. 1
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Barry Katz: It’s the construction time and whether or not that is going to deteriorate the quality of life for the 3
people who live on Old Oak Place, because of the further deterioration of that road and, if ther e was such 4
deterioration, whether that can be mitigated. 5
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Paul Parker: Yes; that can be mitigated. We would be prepared to take care of any damage done to that 7
road during this construction. 8
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Barry Katz: So this may be the time where this was mentioned, I guess that’s page 55, where there was 10
some general concern about the condition of the neighborhood road and the staff answered they were 11
going to ask the DOT if they would look at this and if they would ask the applicant to post a construction 12
dock to cover potential impacts to the roadways associated with construction, as part of this. My 13
understanding is this is not an obligation but, this is something that was a request. Have you considered 14
this request and had you have a decision about that? 15
16
Paul Parker: We’ve considered the request and we’ve not had any dollar amount, as far as what kind of 17
bond to put up or who to put the bond with, but we are prepared to maintain the current integrity of the road. 18
19
Barry Katz: Is there a historic standard for how this is dealt with/addressed? Do you know? 20
21
James Bryan: I believe that there is a current bond on this project, of at least $75,000. It’s my 22
understanding… Typically the … will say if it’s tied to a… If that changes the bond needs to be re -issued 23
so, if it needs to be re-issued perhaps it needs to be re-issued with a higher value. 24
25
Samantha Cabe: Mr. Bryan, I have a question for you… The bond that would be applicable to any damage 26
to the road- would that amount be determined by the DOT or since it’s a sta te maintained road that would 27
be subject to being damaged? Do you know? 28
29
James Bryan: That is a very interesting dilemma. This Board can only put on conditions that says it’s 30
required in order to meet these standards. 31
32
Samantha Cabe: I wasn’t suggesting that we make that a condition, I’m just asking if that’s a question for 33
the North Carolina DOT whether or not to require bond since this is a state maintained road? 34
35
James Bryan: Could be… It depends. I’m not sure about a clear answer. Just because the road 36
deteriorates and you say, “Ok, now we’ve got a bond for a million dollars. DOT here’s a million dollars, you 37
can’t tell the state to fix any road.”. They may be happy to take the money but they’re not obligated to fix 38
that particular road. 39
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Barry Katz: I thought this bond covered the cost of repairing the road to the conditions that existed previous 41
to the construction, and that the money was somehow tied. There’s no tying, is there? 42
43
James Bryan: I believe that the current bond is for the current parcel, not for adjacent parcels. 44
45
Barry Katz: Alright, just to be clear about it… Regardless of the intention of Crown, there’s no way to tie 46
Crown to responsibility to maintain the road at the quality at which it was at beginning of construction? 47
48
Michael Harvey: We have recommended a condition on page 136 that the applicant is required to maintain 49
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all of our North Carolina DOT approvals and permits. Allowing for the creation of the driveway. The 1
question concerning the current status of the road is going to be addressed, from my standpoint, at that 2
particular time that the permit is requested. The DOT does have an opportunity at that point in time to 3
require the posting of a bond on any project they see fit but they have to issue a permit for. Having said 4
that, I’ll reiterate what’s in staff’s abstract; while I know that there are concerns over the current condition of 5
the road, my interaction with the DOT thus far has been they will go out and evaluate the situation. It is a 6
publicly maintained road and they have an obligation to maintain it to the appropriate standard. This project 7
not withstanding. I do think some of the current maintenance issues or concerns are external to this 8
request; they already exist. If this project will exasperate those concerns then t he DOT, through its 9
permitting process, can require a bond or they can coordinate with the construction firm as we have seen 10
on other projects to initiate maintenance of the roadways in concert with the construction. 11
12
Samantha Cabe: Thank you Mr. Harvey. 13
14
Graham Herring: And that was my understanding also. 15
16
Henry Kampen: That’s all the evidence that the applicant has to present. 17
18
Graham Herring: Thank you. vice 19
20
Susan Halkiotis: I’m assuming that the existing driveway is going to serve this tower until thi s road is 21
completed, correct? 22
23
Paul Parker: That’s correct. 24
25
Susan Halkiotis: And I’m sure that you already have some detailed ideas about how to cross that stream? 26
27
Paul Parker: Yes, Ma’am. 28
29
Susan Halkiotis: So what would be the chance that you could use the existing road to bring that heavy 30
equipment? I share Barry’s concern about bringing heavy equipment over any service whether it’s gravel or 31
paved because I know what it does. 32
33
Paul Parker: Well, I believe it was about a year ago or a year and a half ago when they clear cut that, and 34
they did bring heavy equipment across for that project. We’re not talking about this kind of heavy 35
equipment. We’re talking about a truck with a Bobcat on the back. We’re not talking about a major 36
excavator and giant machinery and multiple trucks. We’re talking about a very small construction project. 37
38
Susan Halkiotis: A Bobcat to build a 12 foot? 39
40
Paul Parker: Yes, Ma’am. A 15 foot wide. But that’s essentially it. Think of a UPS truck, a box truck. But 41
mini excavators, it’s not going to be what you see DOT massive thing. And we can utilize that access but, 42
it’s a lot shorter for us to come that way. 43
44
Barry Katz: I was also unclear about the culvert that you’re going to use. It seemed like you were going to 45
be putting in a fairly substantial culvert, is that true? 46
47
Paul Parker: Absolutely. That’s required by our… 48
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Barry Katz: One that’s bigger than the one there? One that’s way bigger? 1
2
Paul Parker: Yes, it’s to meet the standards… 3
4
Barry Katz: And getting that culvert in is not going to require… 5
6
Paul Parker: We won’t be destroying more than 50 feet of stream… 7
8
Barry Katz: But as far as the vehicles, etcetera… The management of strategically getting that culvert in; 9
will that require more than just a Bobcat? 10
11
Paul Parker: It will definitely require an 18-wheeler truck to bring in the culvert. 12
13
Barry Katz: And that’s once? 14
15
Paul Parker: Yes. 16
17
Barry Katz: Somehow we just want to make sure that the people that live on Old Oak Place are not worse 18
off; we need to approve this and this issue… We just want to see to what extent we have a responsibility for 19
the adjacent properties to make sure that they’re left whole by this event. And now we’re getting the 20
impression that it’s really not us but the DOT that’s responsible for doing that. Would you say that that’s so? 21
22
Michael Harvey: For the maintenance issues on Old Oak Place; yes. That’s going to be on the DOT. 23
24
Barry Katz: Ok. 25
26
Michael Harvey: But I will say one of the reasons staff recommended the condition is to try to address the 27
concern of the residents and why we reached out to the DOT after the neighborhood meeting. 28
29
Barry Katz: Well it’s certainly a concern for us but we’re limited to how we address this issue. 30
31
Samantha Cabe: Any other questions for any of the applicant’s witnesses from the Board? … At this time if 32
there are any witnesses for the opposition; if they could come to the microphone, state whether you’ve 33
been sworn and… 34
35
Jerry Bouche: Yeah, my name is Jerry Bouche and I have been sworn. I’m the property o wner at 2100 Old 36
Forest Drive; which is on the corner of Old Oak and Old Forest. So the road will be right along my fence 37
line there. So first of all, I’m under the impression the state maintenance ends about less than 100 feet from 38
the corner of Old Oak and Old Forest because that’s where the asphalt ends. I have always maintained the 39
rock and grass substrate next to my lawn. I keep it mowed during the summer and I keep the rock and 40
gravel at level. I know when the state first took maintenance of the Wingate sub division they push that 41
snow right up to the edge of the asphalt and that’s as far as they go. So, I think that’s where state 42
maintenance ends. My question is, for someone who will accept responsibility I think he says that the state 43
transportation will have to do that. I can also tell you now that when, a year and a half ago, when they cut 44
that timber they absolutely destroyed the culverts bringing those trucks in and out of this, just the one lane 45
paved road throughout that subdivision. And this property gets saturated pretty quickly, it’s just grass. The 46
rock that the timber company put down is gone and I can park my car… I do use that for parking sometimes 47
because I have my daughter’s car, my wife’s car, my company vehicle and sometimes a company route 48
truck out there also and during the rainy season you can’t park a car out there; even on the rock, there’s 49
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11
already down there to the surface from that. So I have a huge concern about what that driveway will look 1
like and, also this is the first I’ve heard about a fence going up… How will that look with a razor wire and an 2
8 foot fence? Will that be seen from my property? Can you point exactly on that map where that fence will 3
be? 4
5
Paul Parker: We’ll come in however far; it really makes a zero difference to u s. We’re doing it for the 6
security so that nobody can come back in here and try to come back around and do anything. We’re going 7
to block off anybody from being able to get access. The razor wire is going to be up on this side. *inaudible* 8
… We can put it wherever you want to. I can put it over here if you want to but we have it on the site plan, I 9
believe, right here at the front. What ultimately happens is we don’t want anybody coming back here at all. 10
11
Jerry Bouche: Sandy and I have lived there since 19 96 on that piece of property and we’ve never had a 12
problem. My other concern is that a lot of times people that turn right on Old Oak and are looking for an 13
address on Old Forest will fail to make the right hand turn on Old Forest and will keep driving so will there 14
be a sign, will there be a posted dead end or no admittance type sign there? 15
16
Paul Parker: Yes, it’ll be a 16 foot wide gate. It will be identified with the Crown Castle Tower site number 17
with a telephone number and whenever our contractor or te chnician comes in they have to call that number 18
and give notice. 19
20
Jerry Bouche: I’m not that concerned about the frequency of the visits to the tower, it doesn’t seem like it’s 21
that much at all. But I don’t know how you put that much rock all the way and not send a dump truck or 3 in 22
there with rock. Are you saying… Is that going to be rock all the way back, 15 foot wide? 23
24
Paul Parker: The green probably represents the entire width of the easement. We’re going to only go 15 25
feet wide and yes, it’s going to be full on DOT certified gravel road and this is a matter of, think of it as a 26
matter of national security to get back to this tower site to service it so, it will be a nice road. We want to be 27
good neighbors with you so it you want some gravel for up around front… 28
29
Jerry Bouche: Well my concern is where the asphalt ends now for the state and then there’s just rock and 30
then you go in with heavy rock… I just don’t see the continuity in what that looks like. Because that is my 31
driveway into my house, I have no driveway from Old Forest Drive, my driveway is accessed by Old Oak 32
Road. 33
34
Samantha Cabe: So, could I ask a question of Mr. Parker that may clarify this? So is it the intent that your 35
company will pick up and begin their road at the end of the pavement o r at the property line? 36
37
Paul Parker: We have no rights to the DOT property at all so wherever the Perry Sloan property starts 38
that’s where we’ll start maintaining? 39
40
Samantha Cabe: So what happens to that little spot between the pavement and where… 41
42
Michael Harvey: DOT is on the hook. 43
44
Paul Parker: They will make us, probably, put an apron, I don’t know if you know what that is but it’s like a 45
driveway apron. That’s probably what they’re going to have to make us do. And they may make us extend it 46
with a little bit of asphalt, we just don’t know yet. 47
48
Henry Kampen: The point is, the DOT will make that decision and direct Crown to do whatever they chose 49
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12
to. 1
2
Jerry Bouche: Because that apron would be considered, would they state consider that… run that apron to 3
my cement pad for my driveway, for my parking. 4
5
Paul Parker: I would start right where the road ends and enters the property right there. So wherever that 6
black line is right there, that’s the DOT.. I’m not sure if that’s your driveway; I would conside r that the DOT. I 7
understand that you use it but that’s… 8
9
Jerry Bouche: I understand that that’s a right away but when I turn into my cement pad on my driveway, 10
there’s still just another 30 foot of just rock there? Or would you or the state consider makin g whomever’s 11
responsibility it is all the aesthetically pleasing with one sub straight on one… 12
13
Paul Parker: Yeah, I would like to see what the state is going to require us to do and we’re willing to go 14
above and beyond the call of duty should it… We want to be good neighbors; we don’t want to leave you 15
hanging. 16
17
Michael Harvey: Let me also make sure everybody understands the gate, according to sheet C1 of the site 18
plan, is going to be in this general area right here. 19
20
Paul Parker: We’re going to have 2 gates. 21
22
Samantha Cabe: We didn’t see that… 23
24
Susan Halkiotis: I couldn’t see where you were pointing to for the fence but I imagine that your concern was 25
that you don’t want to look out your backyard and see razor wire. 26
27
Jerry Bouche: The razor wire will be back toward the facility itself. It’ll just be a gate. 28
29
Paul Parker: We want a gate there… 30
31
Jerry Bouche: Every now and then we’ll have a neighbor or so park where that gate is proposed and walk 32
back to the fishing and do a little fishing in that pond. 33
34
Graham Herring: Where you turn in is on your drive, your concrete pad goes up to a parking pad and also 35
ties into the … of your swimming pool that… 36
37
Jerry Bouche: Yes, at the intersection of Old Oak and Old Forest is maybe 150 of asphalt then it turns int o 38
rock. Rock runs up to and circles around to meet my concrete pad from my driveway. 39
40
Barry Katz: I just wondered if you feel that your concerns have been addressed at this meeting thus far. 41
42
Jerry Bouche: Yes, sir. 43
44
Michael Harvey: Can I make a suggestion? Part of staffs confusion is obviously the site plan, we see the 1 45
gate and I understand from testimony this evening that there’s actually going to be 2 gates. Staff would like 46
recommend that the Board consider opposing an additional condition saying th at the applicant provide a 47
revised site plan that the applicant and staff meet with the Bouche’s to discuss the location of the potentially 48
augmented landscaping in and around that second gate to address any visual concerns. 49
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1
Henry Kampen: That’s fine. 2
3
Michael Harvey: I’ll get to that in a minute. 4
5
James Bryan: I’m not sure… The conditions have to be clear. 6
7
Samantha Cape: The intent is that since the first initial gate is not reflected on the site plan the Board would 8
like to potentially impose an additional… The staff is recommending imposing an additional condition that 9
essentially imposes a requirement that the applicant make that gate aesthetically pleasing and work with 10
staff to do so. 11
12
Michael Harvey: That the location and landscaping in around the entrance gate be reviewed and it not be 13
right at the intersection of the property in Old Oak Place. The offset be out of view and I’ll come up with 14
some language as we go through the script. 15
16
Samantha Cabe: Ok. Thank you… Is there any other testimony that either side would like to offer? 17
18
Michael Harvey: And do you have any questions for staff before we begin the script? 19
20
Karen Barrows: I have one question Michael… The staff recommends the following conditions on page 21
137, number 7: Any and all abandoned structures shall be removed. That’s addressed in the… 22
23
Michael Harvey: When you actually get into the provisions of the UDO that’s now a condition that has to be 24
applied to all SUP dealing with telecommunication towers. So we’re recommended its position because it’s 25
now a requirement. 26
27
Karen Barrows: But it’s in the original attachment 4. 28
29
Samantha Cabe: These are the standards and Mr. Harvey is suggesting we add is as a condition to the 30
issuance of the permit because it is a standard. So it’s listed her e in the original attachment as a standard 31
but it was not listed as a condition to the issuance of the permit. 32
33
Karen Barrows: So if it’s a standard it doesn’t mean it necessarily has to be… 34
35
Michael Harvey: The UDO requires that be a condition on all app rovals. Because of the wording of the 36
UDO we added it and added what is now number 8 as well for the same reason. Because the UDO makes 37
special reference to it being a condition. As those 2 conditions didn’t apply in ’96 they aren’t specifically 38
referenced on the recorded SUP. We’re including it herein so we’re consistent with the UDO. 39
40
Karen Barrows: Ok. 41
42
Michael Harvey: So we are using the revised attachment 4. I’ll try to be as synced as possible and if you 43
have questions please stop to interrupt me to make sure that I’m answering your questions. 44
45
So obviously, we’re looking at a modification. This modification would allow the relocation of the driveway of 46
proposed. Beginning on page 105, page 105 to 106 we are providing you with information on whether or 47
not the applicant met submittal and application component require… detail within sections 2.2 and 2.73 48
inclusive of the UDO. Were the proper forms filed? Yes, that’s actually contained in attachment 2 of your 49
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14
application. Were the fees paid? I will testify, the answer is yes; and in attachment 2 you have a copy of the 1
receipt. Full description of the use? Yes, that’s contained within the attachment 2 of your application 2
package as well as the site plan. Information needed for use standards… where it’s a ll contained either in 3
the attachment 2 which is the application or site plan, preliminary subdivision plat? There’s no subdivision 4
proposed so none was required. Elevations of all structures project does not involve the erection of a 5
structure, just relocation of a driveway. I will point out to you that both the supplemental information 6
contained on pages 200 thru 240, as well as the site plan does show existing structures that are on the 7
property that have already been permitted. Environmental assessment… 8
9
James Bryan: Ok let me go back, there’s some confusion on my part. The elevations of all structures; is 10
that a recommendation out of yes? 11
12
Michael Harvey: No, we’re saying it’s not applicable because there’s no structures proposed as part of this 13
requirement but what I have said is that on pages 200 thru 240 there’s information on the structures that 14
have already been approved and constructed on the property as well as on the site plan that’s already been 15
submitted as part of this application requires. 16
17
James Bryan: So it could be yes if it were… 18
19
Michael Harvey: Correct… I’m making the statement for obvious reasons because I’m trying to be 20
consistent with my script and also say what’s available, yes. 21
22
James Bryan: Ok, I just want to be clear to the Board that there’s a difference of opinion here. I am 23
recommending that this is applicable, that the Board has to have a… it was submitted. 24
25
Samantha Cabe: Then I have a question for staff. Well, I have a question for the attorney first; when you 26
said that it was submitted do you mean submitted as part of the modification application or submitted either 27
with modification application or with the initial application? 28
29
James Bryan: Yes, it’s not clear. I think we’ve got something to hang our hat on either way but, my 30
strongest recommendation is that if it were to be appealed to the Superior Court our firmest ground would 31
be if it was newly submitted. I think if it’s prior information, I think if it’s reasonable that it’s the same 32
information I think we’re on pretty strong grounds there. So I think either one I’m comfortable with. But one 33
is definitely stronger than the other one and there’s no clear direction from the UDO about what it is. 34
35
Henry Campen: I would just point out, Madam Chair, *inaudible* got standing to appeal other than us and if 36
it’s staff’s recommendations as are outlined in this narrative are upheld then *inaudible* appeal that issue. 37
38
Samantha Cabe: Thank you. 39
40
Michael Harvey: Next standard: Environmental assessment per the previsions of sectio ns 6.62 and 6.16.3 41
of the UDO this project is exempt, doesn’t disturb sufficient land area to require environmental assessment. 42
We also base this decision on the environmental impact application that is contained in attachment 2 they 43
submitted. It provided sufficient detail for us to make this finding that it was not applicable. Method of debris 44
disposal: There’s notes in the submitted site plan. The applicant has indicated that obviously, at least to us 45
and as well as the application, that any debris in go ing to be disposed of in accordance with the Orange 46
County Solid Waste Management Plan, which is the requirement for all permits. Any permit issued allowing 47
land disturbing activity has the same writer and condition; that all debris has to be disposed of i n 48
accordance with that document. We have under development schedule we have the site plan, we also have 49
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15
to testimony from this hearing this evening. Extending vesting request; there is no vesting that’s been 1
required. Notification requirements; on page 106 now, that is covered under attachment 3 as well as my 2
testimony here this evening and my abstract. Does anybody have any questions on 105 or 106? Ok, page 3
107 deals with compliance with standards 5.3.2b; this is waste disposal, safety, vehicular access. I ’ve 4
testified this evening that with respect to waste disposal both environmental health and solid waste have 5
not indicated to have a concern. This still has to go through a permitting procedure; they’ll be applying for 6
solid waste permit as a part of erosion control and construction authorization from the county. There is no 7
office on site so there’s no need for well or septic systems so there will be no environmental permit review. 8
With respect to safety we have had conversations with Orange County emerge ncy service at the Sheriff; 9
they have indicated that they can provide service. We have, however, recommended the im position of 10
condition that the Fire Marshal review the driveway proposal as he does with every driveway proposal, as 11
part of the zoning compliance for new process and then any associated conditions will be addressed at that 12
time. Vehicular access; supporting evidence is in the application and site plan as well as staff testimony. 13
With respect to the conversation with DOT we’ve obviously recommended a condition that they give the 14
implacable NCDOT permitting and that questions or concerns related to that will be addressed at that 15
appropriate time. Any questions? Shooting to 108; this gets into the specific findings with respect to 16
telecommunication towers. Site plan; we obviously have a site plan. The applicants testimony, our 17
testimony, it’s in the record. The detailed description of the proposed telecommunication supports structure. 18
For that we have entered into the record of this ordinance the o riginal BOA application package, as well as 19
the recorded SUP. This is on pages 200 thru 240 of your supplemental information that provides a 20
description of the existing telecommunications tower. There’s also brief descriptions of the existing tower in 21
the application packet itself. I will stipulate once again for the record, the existing facility will not be modified 22
as part of this request. Elevation drawings… of the proposed tower, again we’re referring back to the 23
original SUP. The original application contained on pages 200 to 240. Page 109; A signed statement from 24
the application certifying that the proposed telecommunication support structure shall be maintained in a 25
safe manner, is in compliance with all conditions of all applicable permits and author izations without 26
exceptions, and is in compliance with all applicable and permissible local State, and Federal rules. We 27
have made a finding that the original SUP and application, as well as a recorded SUP provides this 28
information. That’s on pages 200 to 240. We also have provided you statements on pages 241 thru 341 of 29
the supplemental information; this is structural analysis reports, completed by engineers allowing for the 30
erection of individual antenna on the tower. The most recent done in 2014 indicate that the tower was 31
structurally sound and complying with applicable standards. Page 110; a statement prepared by a 32
professional engineer certifying that the tower’s compliance with applicable standards as set forth in the 33
State of North Carolina Building Code. Again, I’ll refer you to the supplemental information, the original SUP 34
application, the recorded SUP and the 2 structural analyses for the most recent completed on April 30, 35
2014. This project will not alter the towers capacity or impact, it’s existing ability to maintain antennas on 36
site. I’ll direct you to pages 200 to 341 for the information concerning the towers structural compliance with 37
Safe Building Code. Page 111; A statement indicating how the proposed over will minimize visual 38
intrusiveness to surrounding properties in the area; again, I will refer you to the supplemental information. 39
I’ll also refer you to testimony from tonight’s meeting that the tower’s not going to be altered from its 40
previously approved status. A copy of the installed foundation design including a geotechnical sub-surface 41
report. We are recommending a finding not applicable because no tower is being installed as part of this 42
proposal and as such we couldn’t require the applicant to provide one. 43
44
James Bryan: And just to be clear, I’m advising the Board that you need a yes or no vote on whether that 45
was provided or not. 46
47
Samantha Cabe: Again, my question would be; was one provided with the initial application? 48
49
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16
Michael Harvey: The geotechnical report was not a requirement in 1996. What I will state is, obviously, a 1
building permit was issued to authorize for the tower to be erected. We have the original recorded SUP 2
indicating that the project was in compliance with the ordinances as it existed at that time. We have 2 3
structural analysis’ contained on pages 200 to 341, indicating that the tower’s compliant with applicable 4
State building codes. So we offer that into evidence to make it an affirmative finding in this answer. 5
6
Page 112; existing cell sites (latitude, longitude, power levels) to which this proposed site will be a handoff 7
candidate. We’ve also again made the same recommendation, however, to address Mr. Bryan’s concern 8
according to the original permit findings of fact in this case, pages 205 to 240, *inaudible* that information’s 9
not changed to our knowledge so that is the closest tower of an existing cell site to which this is a proposed 10
candidate for handoff. So, if you make it an affirmative finding there’s information contained on pages 205 11
thru 240 of the supplemental material that will get you the ability to make an affirmative finding. Propagation 12
studies; page 113, staff has recommended that finding provision is not applicable; the State no longer 13
allows us to require propagation studies. The ordinance is going to have to be amended to remove that so 14
we’re comfortable making the recommendation we have based on current guidelines and State law. It 15
cannot be irrational to deny a telecommunication tower permit so we were reviewing this 16
telecommunication tower permit today, some of you might remember with Curly Road- the applicant wasn’t 17
required to submit propagation studies, for the reasons that I’ve already testified to. Page 114; the search 18
ring utilized to find the proposed site. We are making reference ba ck to the original SUP application as well 19
as the recorded SUP. The original application demonstrated the need for the telecommunication tower in 20
this area and the Board after holding the required public hearing made the determination that they could 21
issue the permit, indicating it was necessary. I’ll just stipulate again, as nothing associated with the 22
relocation of this access driveway alters the operational parameters of the approved and constructed tower, 23
this information is still viable. The number type, height, and model of the proposed antennas. I’m going to 24
refer you all to the supplemental material, especially the structural analysis to provide a breakdown of the 25
antennas that are on the tower. Page 115; the make, model and manufacturer of the tower . That’s also 26
contained in the SUP application and the SUP itself that is recorded. The frequency, modulation and class 27
of service of radio or other transmitting equipment. I’m going to refer you to the entire supplemental 28
package. Specifically, the structural analysis reports that provide that information on pages 323 thru 341. 29
And questions before I move on? Page 116; the maximum transmission power capability of all radios, as 30
designed, if the applicant is a cellular facility. Again, I’m going to refer yo u to the supplemental material. 31
Specific to pages 323 thru 341. This also goes for the actual antenna transmission a nd the maximum 32
effective radiated power of the antenna. Also contained in the structural reports we have provided to you. 33
Directions of maximum lobes and associated radiation of the antenna. Again, that’s also provided in the 34
structural analysis reports. Certification that the NIER levels at the proposed site are within the threshold 35
level adopted by the FCC. We’re indicating a finding amount applicable for the reason stated. Having said 36
that, if you look at the structural analysis reports contained in the supplemental package material you will 37
find that the project’s been found to comply with FCC standards. If the Board chooses to make it an 38
affirmative finding then you would make it consistent with the structural analysis information that’s been 39
entered into the record, indicating the project complies with applicable FCC standards. Page 118; 40
certification that the proposed antennas will not cause interference with other telecommunications devices. 41
As no antennas are proposed we are providing you the structural analysis and the supplemental 42
information is proof that there’s space left on the tower to handle additional antenna. A written affidavi t 43
stating why the proposed site is necessary for their communications service. There’s application 2 of the 44
current application that indicates why the driveway needs to be moved and we’re also going to refer you 45
back to the original SUP as to why the tower should’ve been built in the first place. A copy of the FCC 46
license applicable for the intended use of the facility as well as a copy of the 5 and 10 year building out plan 47
required by the FCC. We’re recommending that that’s not applicable because the towe r’s already 48
constructed and it’s operating under current FCC guidelines and standards. 49
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17
1
James Bryan: And just to be clear I would say that that needs a yes or no as to whether it was provided. 2
3
Samantha Cabe: Was that one of the provisions that wasn’t in place at the time of the original application? 4
Because if they’re actually functioning I would presume they can only do so with an FCC license. 5
6
Michael Harvey: Correct. And again, to go to James’ point I’ll refer you the structural analysis and 7
supplemental material as evidence as proof that they are currently operating in compliance and in 8
accordance with the adopted FCC standards. Which is what those reports testify to as well as to stay 9
building code. 10
11
James Bryan: Just to be clear, that’s not the standard. The standard is a submittal of the copy of the 12
license. And also, with anything whether it’s a daycare and you have the standards and it doesn’t meet the 13
standards, if it doesn’t meet the standards then you could be a condition to meet the standard , you’re 14
allowed to do that. So a condition can be to provide a copy of your license. 15
16
Henry Campen: I’m just curious, I have to ask the question of the council whether *inaudible* with Crown, 17
would you have prefer Crown re-file the entire application of ’96. Update it if necessary and re-file the whole 18
thing for the tower as well as the new access road. Is that what you’re suggesting? I think I’m 19
misunderstanding. 20
21
James Bryan: Yeah, I think a modification request for a SUP, I think you would have to loo k at it use by use 22
because each use has different submittal standards. A telecom tower has the most submittal requirements 23
so it’s far different from a daycare. But, for any use you would have to look at all the submittal requirements 24
and say, “Yes, here’s a copy of our old one. Here’s a statement that I’m re-affirming it and if there’s 25
anything that’s changed in the last 20 years, either in the UDO’s requirements or in our use, here’s the 26
updates for it.” I think that’s how our UDO reads. 27
28
Henry Campen: Just for record, we’ve been working with Mr. Harvey for some months on this and his 29
advice was not to that effect. The first we heard about this interpretation of your ordinance was Friday 30
afternoon… Just for the record. 31
32
Samantha Cabe: I have a quick question, this question might be bests answered by Mr. Parker. How 33
difficult would it be to get a copy of your FCC license and a copy of the building plan that is supposedly 34
required by the FCC anyway? Would that be difficult to get? 35
36
Paul Parker: I would not think so. I think that you guys already have it on record. 37
38
Michael Harvey: It’s not in any file I saw. But I will, again, I’m going to testify as I did a few minutes ago that 39
in order to get the building permit they had to submit the copy. But, I think th at James has provided you a 40
solution which is, and we’ll get to that as a recommended condition, that they produce the required license 41
per section of the UDO. 42
43
Samantha Cabe: And I wrote that down. I guess my question was how big of a hurdle is this and i f they’ve 44
already provided it with their submission to Orange County in the form of a submission to the permitting 45
department rather than the BOA suffice for the providing a copy of? 46
47
Henry Campen: We’d be happy to provide that as a condition to the… 48
49
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Michael Harvey: Ok, section on page 119; section 5.8.10 A2, application for the co -location of antennas. 1
Staff is recommending finding that this provision is not applicable. It’s just not proposed co -location of an 2
antenna. Period. Compliance with sections 5.8.10 B 1a and 1b; Overall Policy and Desired Goals. We have 3
found that the applicant has provided this information, it’s the narrative contained in attachment 2. So they 4
have met their burden. The next provision, the Ballon Test. Staff is recommending the f inding of this 5
provision is N/A because as required by the code all proposed telecommunication support structures are 6
supposed to fly a balloon test. There’s no telecommunication support structures proposed, no balloon test 7
was required. 8
9
James Bryan: This is one that I think is required. I don’t know how you could require it afterwards. 10
11
Michael Harvey: I’m holding onto the fact that the language that the ordinance has proposed new wireless 12
facilities; no new facility is proposed, ergo, the staff did not require them to hold the balloon test. 13
14
Samantha Cabe: Ok. 15
16
Michael Harvey: Submittal of site plan is the next standard requirement. We have a site plan in the record. 17
Plans and elevations for all proposed structures and descriptions of the color, natur e and exterior material, 18
along with the make, model and manufacturer of the proposed structure, maximum antenna heights, and 19
power levels. This is all contained in the supplemental material we’ve provided you. So we’re indicating this 20
condition has been met. A landscape plan; the application attachment 2 discusses landscaping. The site 21
plan discusses landscaping, specifically sheet C-1A denotes additional vegetation that’s going to be 22
installed. Evidence that the applicant has investigated the possibilities of placing the proposed equipment 23
on an existing wireless support structure; we’re making the finding that’s N/A as no proposed equipment or 24
proposed antenna were part of this application. 25
26
James Bryan: 3D? 27
28
Michael Harvey: Yes, sir. 5.8.10 3d. 29
30
James Bryan: I would recommend that you need a yes or no. 31
32
Henry Campen: There’s no proposed equipment. 33
34
Samantha Cabe: We get it. 35
36
Michael Harvey: Documentation from applicable state or federal agencies indicating requirements, which 37
affect the appearance of the proposed structure, such as lighting and coloring; we’re making an affirmative 38
finding, again, using the supplemental material we’ve provided you. The original SUP, the approved and 39
recorded SUP, and all the other information we’ve entered into the reco rd. Page 122, draft bond 40
guaranteeing approval of the wireless support structure; we’re recommending it’s N/A. To address Mr. 41
Bryan’s concern we can give you a recommended finding of yes, and that there’s an existing bond covering 42
the removal of this facility if it’s already in place. There is no bond, however, require independent of that 43
previously issued bond covering the installation of the roadway. A list of current tax method map identifying 44
all property owners; that’s attachment 2, it’s been provided. A report containing any comment received by 45
the applicants response to the balloon test; since no balloon test was done and no balloon test was 46
required this report was not required to be submitted. Neither was there evidence that the balloon test 47
requirements were met, nor a notarized statement that the sign advertised that the balloon test was posted. 48
I will remind the board, however, there’s evidence in your packet that we held the required neighborhood 49
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19
meeting and posted the signs associated with the required neighborhood meeting. 1
2
Samantha Cabe: Are you saying that this is one that you agree with, or you’re saying we should have a 3
yes? 4
5
James Bryan: I believe that… The supporting evidence says that it wasn’t required but it wasn’t required by 6
staff. I believe the UDO does require it. It may be ridiculous, there may be somebody that says “this is 7
ridiculous, you’ve got an existing building the same height…”, but that’s how the UDO is written and I have 8
to advise the Board that you guys are bound to enfo rce the UDO as it is written. 9
10
Samantha Cabe: Ok, thank you. 11
12
Michael Harvey: My point is the ordinance makes specific reference that the balloon test should be flown to 13
height of proposed towers and since there’s no proposed tower the staff gained that there was no 14
requirement to comply with the balloon test. 15
16
James Bryan: For that you guys are getting a use. The use is for the entire parcel and it’s for a tower. 17
There’s no avoiding that there is a tower. It’s being modified. How it’s being modified is far away but the use 18
is being modified. 19
20
Michael Harvey: On page 122, I’ve testified that there is a bond already in place. There is; so if you make it 21
an affirmative finding then you’re making it an affirmative finding based on the supplemental material and 22
my testimony that a bond already exists for the removal of the telecom tower associated with the original 23
approval. They have supplied the tax map information as required. We’ve already covered the balloon test 24
so I apologize for being repetitive. On the SUP application shall include a statement that the facility and its 25
equipment will comply with all federal, state, and local emission requirements. I’m going to refer you again; 26
we’ve made an affirmative finding. The original SUP application and all the supplement material we’ve 27
submitted, including the structural analyses supplied this required information. On page 124, for 28
environmental assessment analysis and visual addendum; the UDO requires, if this is required, then this is 29
the standard it has to meet. The environmental assessment was not a requirement because they’re not 30
disturbing sufficient land areas, it’s already been testified to, to require one and the visual addendum is also 31
not required because, quite frankly, there is nothing being done to the existing tower. And that’s section 32
5.8.10 B3m. And it reads as follows: An applicant may be required to submit an environmental assessment 33
analysis and a visual addendum based on the results of that analysis including the visual addendum the 34
county may require submission of a more detailed visual analysis. 35
36
Samantha Cabe: So that’s a permissive submission anyway? 37
38
Michael Harvey: Yes, and I didn’t require them to submit it. 39
40
Samantha Cabe: Ok, so you agree with those? 41
42
James Bryan: Yes. There’s a few things that are truly non applicable. If the UDO makes it a conditional 43
statement, if it says, “If this, and that…” then it’s not applicable, the Board doesn’t have to make a n 44
affirmative yes or no, or they can just say yes it was met because it was condit ional. 45
46
Samantha Cabe: Ok. 47
48
Michael Harvey: On page 125, visual impact assessment; again, I made the determination it’s not required 49
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20
based on the wording of the UDO. The next section, demonstration that the wireless support structure is 1
sites so as to have the least visual intrusive effect reasonably possible; we’re referring you back to the 2
original SUP application file and recorded SUP, as well as the vicinity map attachment 1, and the applicant 3
modification attachment 2 in support that the wireless sup port structure so as to have the least visually 4
intrusive effect reasonably possible. A statement prepared by a professional engineer licensed by the state 5
of North Carolina certifying the tower’s in compliance with applicable standards as set forth by sta te 6
building code. This is a requirement that shows up 3 times in the UDO, so forgive me for being repetitive 7
but, as we’ve already stipulated too, the structural analysis reports contained, on pages 241 thru 341, that 8
required information and signifying that it complies with state building code. Proposed telecommunications 9
equipment planned cannot be accommodated on an existing wireless support structure; our finding is a n 10
affirmative based on the original SUP application file and recorded SUP permit, this is in the supplemental 11
information we’ve provided. BOA have already determined that this tower needed to be erected to address 12
the concerns associated with the original application and that finding has already been made; there’s 13
nothing being done by the modification changing that finding. Location of wireless support structures; again, 14
we’ve made an affirmative finding based on the original SUP application and the recorded SUP that’s in 15
your supplemental material. Fall back zones; same, we’re referring ba ck to the original SUP and the 16
recorded SUP. We’re also referring you to the site plan that’s submitted that shows the fall zones indicated 17
with tower compliance. Page 127, access; site plan shows the proposed new access road. We also have to 18
applicant’s testimony this evening and attachment 2 of the application listing out their rationale for having to 19
move the driveway from Landau to Old Oak Place. Any questions on that? 20
21
Barry Katz: Are you ok with that? 22
23
James Bryan: It’s recommending yes but I think that this is the issue… If I may, the Board might want to 24
take a look, there are 4 sub-sections for access. I don’t know if the Board has really considered those but, 25
it’s up to the Boards discretion. 26
27
Michael Harvey: The 4 sub-sections that Mr. Bryan’s referring to is in a wireless telecommunication support 28
structure site and access road, turn around space, and parking shall be provided to assure adequate 29
emergency and service access; it’s my testimony that site plan provides a level of detail showing the 30
driveway location, showing the compound as it currently exists and showing where vehicles will be able to 31
park, stay, turn around and then leave the site. Maximum use of existing roads where the public or private 32
shall be made to the extent practical and they are doing that. They’re making use of an existing publicly 33
maintained roadway, Old Oak Place, to get access to the tower. Road construction shall, at all times, 34
minimize ground disturbance, and the cutting of vegetation. That’s actually a requirement o f the Orange 35
County .. permitting process. Roadways shall closely follow natural contours to ensure minimal visual 36
disturbance and reduce soil erosion. My statement is, when you review the site plan the proposed drive 37
location is an area of the property that’s relatively flat near an adjacent utility lines, they will not require cut 38
field grade or massive alteration to the existing property… Any questions before I ramble? Page 128, 39
landscape and buffers- Type C land use buffer; I’m referring you to the appl ication submitted and the site 40
plan and the vicinity map show the existing vegetation and it’s also shown on sheet C -1a… We’re back 41
again to the visibility of balloon shall not constitute sole justification of denial; N/A as no balloon was flown. 42
And I’ll defer to James but, when you read this particular section, it reads as follows: The visibility of the 43
balloon to adjacent properties and the surrounding area shall not constitute sole justification of denial of a 44
permit application but, is an indication of what location on site may be less visually intrusive. My point being 45
is that this provision is telling you just because somebody saw the balloon is not justification to deny a 46
permit application. To me, there is some question whether or not it’s even a finding that has to be made, it’s 47
just a directive and I defer to James on that. I put N/A for the reason stated. 48
49
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21
James Bryan: Yes, this is, I think, just another example of just poor draftsmanship in the UDO. This is not a 1
standard from which any Board can say yes or no. So, either N/A or yes because… 2
3
Michael Harvey: Next, the applicant shall demonstrate and provide a description in writing and by drawing 4
how it shall effectively screen from view the base and all related equipment and structures; we’re g oing to 5
refer you to the application attachment 2 and the site plan and vicinity map again with the same rationale I 6
indicated above. They’re showing existing vegetation, as well as proposed vegetation to augment what’s 7
already on site. The site plan shall indicate a location of at least 2 equipment buildings in addition to that 8
proposed for use by the applicant; I’ll refer you to the original SUP application and the recorded SUP that 9
provides this information. I’ll also tell you that the current site plan that’s submitted shows locations of 10
structures on the property and there are a minimum of 2. Page 129, all utilities at a facility site shall be 11
installed underground and in compliance with all laws, ordinances, rules and regulations of the County 12
where appropriate; I have made a finding of N/A as the relocation of the drive will not impact existing 13
utilities. 14
15
James Bryan: I don’t think they would have to comply, I don’t know if there are existing utilities. 16
17
Samantha Cabe: We had testimony that there wa s electricity being provided. Can we have Mr. Parker 18
testify as to whether that was underground? 19
20
Paul Parker: That’s the plan, yes, ma’am. Underground utilities. 21
22
Samantha Cabe: Is it not already there? 23
24
Paul Parker: No, we have not… We have electricity on the site on a current access but, not where we’re 25
applying for right now. 26
27
Samantha Cabe: So you’re going to dig up the electrical access and move it too? 28
29
Paul Parker: We’re going to abandon and put in new. 30
31
Barry Katz: I think what he’s saying is that in order for the gate to be electronically monitored there has to 32
be electricity going to it. 33
34
Paul Parker: This is electricity to run the towers. 35
36
Barry Katz: So, you’re testimony is that all utilities will be underground where appropriate. 37
38
Paul Parker: Yes. 39
40
Michael Harvey: Applicant testimony indicates that they’ll comply with all utilities being underground where 41
appropriate. 42
43
Jerry Bouche: The current subdivision is all underground. 44
45
Barry Katz: And is that a good excess power available for you to use that ok?.. I see, ok. 46
47
Michael Harvey: Ok, the next standard’s 5.10.8 B4J, all wireless support structures shall satisfy all 48
applicable public safety, land use, or zoning issues required in this Ordinance; I’m going to refer you to the 49
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22
applicant contained in attachment 2, staff testimony this evening. And we have made it an affirmative 1
finding. Fences and walls; we are making an affirmative finding both in the application attachment 2 and the 2
site plan show fences and walls, not only existing but proposed. The tower is structurally designed to 3
support additional users; we will refer you to the supplemental information specific with the structural 4
analysis reports completed and August of 2010 and April of 2014 showing that there are multiple 5
opportunities for additional to be erected on the tower. To minimize the number of antenna arrays the 6
County may require the use of dual mode antennas; I have made a finding of N/A, there are no antennas 7
proposed as part of this application. It is objective and as t here are no antennas proposed we’ve said that 8
the findings N/A in this particular case. Page 131, Structures shall be galvanized and/or painted with a rust -9
preventive paint of an appropriate color to harmonize with the surroundings; we’re going to refer yo u to the 10
supplemental information, original SUP application and the recorded SUP. Information’s contained within 11
these documents indicating how the tower complies with the standard. The next standard, both the wireless 12
telecommunications support structure and any and all accessory or associated telecommunication 13
equipment and related facilities shall maximize the use of building materials, colors and textures designed 14
to blend with the structure to which it may be affixed and/or to harmonize with the natura l surroundings; I’m 15
going to refer you to the site plan that’s been submitted as well as the supplemental information we have 16
provided you as documenting in compliance with the standard. Next, on page 132, antennas shall be flush 17
mounted; again I’m going to refer you to the original SUP application file and the structural analyses 18
provided. They provide detail that the antennas that are erected on the tower are flush mounted. Lighting; 19
staff is recommending the finding of this provision in N/A. The tower is not going to have to be illuminated 20
based on current FAA or FCC standards or guidelines, it is not legally required as part of this application 21
proposal because the tower is not going to be required to be illuminated and the application site plan does 22
not indicate that they’re going to installing street lighting in or around the driveway. So that’s our 23
recommended finding. 24
25
James Bryan: I think that this one is 50/50. Lighting has 4 sub parts. The vast majority of them say that 26
where the… So all of this is applicable. And some of them say where the feds require you to do it, you have 27
to do it this way and then there are some parts where if you have lighting it’s going to have to be done this 28
way. 29
30
Samantha Cabe: So I understand what you’re saying and I gu ess what… Correct me if I’m wrong, but 31
because the towers already erected and we know that the feds are not requiring lighting because the 32
tower’s under 200 feet, is that why you’re saying it’s not applicable? 33
34
Michael Harvey: Correct. I’m hanging my hat on Q sub section 2, if lighting is legally required or proposed 35
the applicant shall provide a detailed plan for sufficient lighting that’s unobtrusive and offensive in effect as 36
permissible under state and federal regulations. So, lighting is not required b ecause the tower’s under 200 37
feet and it’s not proposed. And that’s my rationale for making it N/A finding. And then sub section 3; for any 38
facility with lighting is required, this facility is not required to have lighting. 39
40
James Bryan: The … it’s for that and for any reason road lights are attached. So if they want to attach lights 41
for their own, so their guys can look at it while they work… 42
43
Samantha Cabe: Ok. 44
45
Michael Harvey: The last standard in this case, the tower and antenna will not result in a si gnificant adverse 46
impact on the view of or from any historic site, scenic road, or major view corridor; the application we’re 47
currently reviewing the site plan, the property vicinity map in attachment 1 as well as we’re going to refer 48
you to the original SUP application file indicating the applicants met their burden. Page 133, facilities, 49
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23
including antennas, towers and other supporting structures, shall be made inaccessible to individuals; 1
again, we’ve heard lots of testimony tonight about fences and gates so, I’m going to refer you to 2
attachments 2 of this application as well as the site plan. We’ll also refer you to attachment 1, which is our 3
vicinity map. Abandoned structures shall be removed within 12 months; we’ve talked about this a little bit, 4
that’s why we’re recommending this become a condition of approval because it’s a requirement for all SUP 5
under the current ordinance. Page 134, a determination shall be made that the facility and its equipment 6
will comply with all federal, state, and local emission requirements; we’re going to refer you to the structural 7
analysis provided in supplemental material as satisfying this requirement. The SUP shall include a 8
condition that the electromagnetic radiation levels maintain compliance with the requirements of the FCC; 9
we are recommending that the applicant has met this burden, but also recommending it become a condition 10
of approval, specifically as the ordinance language say that this shall become a condition of approval. 11
Warning signage on compound fence; we have verified that the site visit the required warning signs, as 12
stipulated, in the sub section high voltage, no trespassing are present. Liability insurance; we have 13
applicant testimony, as well as staff comment this evening. Bond Security. Applicant/Owne r shall file a 14
bond with the County to assure faithful performance of terms and conditions of SUP; we’re changing that 15
based on my previous testimony in response to a question by the County Attorney to an affirmative. There 16
is an existing bond already on file for this project. 17
18
Samantha Cabe: So your recommendation is yes? 19
20
Michael Harvey: Yes. Because we have an existing bond. We looked at it from a driveway stand point, not 21
from the tower stand point, as James asked us to. So, page 135, general findings o n whether or not the use 22
will comply with section 5.3.2. 2A, 2B, and 2C. With the Board’s indulgence I’d like to review the conditions 23
and then staff’s going to make a recommendation on 5.3.2 2A, 2B, and 2C… First of all, I will remind the 24
Board, as detailed on page 136, we have not had any comments or evidence submitted to us in advance of 25
the hearing indicating that this project does not comply with the provisions of 5.3.2 A. We also do not 26
believe that the applicant has failed to meet their burden *inaud ible* there is insufficient evidence in the 27
record proving that their burden has been met. With respect to compliance with the standards and 28
provisions of the UDO. We have recommended several conditions and there have been conditions 29
discussed here this evening, so I would like to go through those real quick. The first condition is that 30
nothing associated with this approval shall be deemed as prohibiting the use of the subject parcels of farm 31
or prevent the maintenance of existing utilities, with the except ion of preserving the access easement as 32
noted on the approved site plan. When Mr. Bryan’s tenure with the County began we began focusing on the 33
need to ensure that the SUP is limited in its scope with respect to what it’s purporting to regulate. An 34
example is, if somebody chooses to engage in a farming activity, does the planting of a new row of crop 35
constitute a modification of a parcel of property? The answer is it shouldn’t. So, this condition has been 36
developed, and many of you have seen it on several SUP applications. Especially where there’s farm 37
activity to ensure that there’s nothing associated with the application in and of itself that limits what 38
otherwise prohibit the legal engagement of that activity. We also don’t want to inadvertently capture any 39
alteration of the existing utility infrastructure on site as somehow creating a modification of the SUP. Duke 40
power has to go out there and do something major to the utility lines that’s Duke Power’s prerogative and 41
obligation to do so in order to ensu re the continued provision of service. Nothing associated with the 42
approval shall be as modifying an existing telecommunication tower, other than the relocation of the 43
existing driveway. This addresses a comment that I made earlier this evening, as well as , concerns from 44
the neighborhood meeting about if this gives them .. to start messing with the tower itself; the answer’s no. 45
So we wanted to include a provision in here that stipulated for the record that you can’t do anything to the 46
tower, all you’re getting authorization to do is move the access road. Three, final the .. street address shall 47
be completed by Orange County… of the issuance of any permits. Orange County has a new addressing 48
ordinance, there will be a new address assigned to this property and it will be off of Old Oak Place because 49
Approved 10/10/2016
24
that’s the driveway. Why is that important? It guarantees emergency vehicles will know where to go and 1
know how to access the site. The applicant shall be required … all required NCDOT approvals and permits 2
in light of the creation of the driveway… and the land disturbing activity, that’s been discussed already. 3
Orange County Emergency Services shall review and issue approval for the proposed access road serving 4
the tower. That’s a typical permitting requirement. Th e next recommended condition is the applicant shall 5
pay all necessary development permits from the County prior to the initiation of land disturbing activity. This 6
includes but is not limited to erosion control management permit, a solid waste management p ermit and a 7
zoning compliance permit. And I must stipulate that these permits will be required at certain thresholds. An 8
erosion control permit will be required but unless the applicant exceeds certain development thresholds as 9
stipulated in the UDO a storm water permit may not be required, but it’s all part of one universal process. 10
Condition 7 and 8 I think are self-explanatory. We’ve outlined the reasons and rationales, conditions 9 or 10 11
are required by the UDO which is why we’ve suggested them. There h ave been 3 conditions by my count 12
that have been recommended for you all to consider *inaudible* that signage be posted at the end of Old 13
Oak Place addressing access management dead end as to address a concern from the Bouche’s over 14
people not understanding this is a dead end road, and I believe that that’s a condition that can be met in 15
discussion with DOT but, I believe that’s a reasonable condition that can be imposed. Another condition 16
would be that the applicant submit a revised site plan showing a new gate location, that this new gate 17
location not be located along Old Oak Place and that its location be reviewed and commented on by the 18
Bouche’s in order to ensure that the gate is not visually intrusive and that sufficient landscaping be installed 19
in and around the posts to shield it from view. And then the final condition that I have written is that the 20
applicant shall be required to submit a copy to the County staff of a FCC license for the continued operation 21
of the telecommunication tower in accordance with section 5.10.8 A1T of the UDO. So those are the 22
recommended conditions. And based on these recommended conditions and the testimony this evening 23
staff would like to make an affirmative finding that the use will maintain or promote the public health, safety, 24
and general welfare. This is the application package, the staff abstract and staff testimony, and the 25
applicant testimony this evening; we believe they have met their burden. We do recommend the Board find 26
that the use will maintain or enhance the value of contiguous property; this is obviously based on the 27
testimony from Graham Herring as well as the application package. The location and character of the use 28
developed according to the plan submitted will be in harmony with the area which is to be located, again 29
staff’s basing this on the application package, the testimony we’ve heard this evening and the site plan as 30
well as the imposition of the grand total of 13 conditions that we believe address concerns about the project 31
moving forward and we believe will address and ensure harmony with the area. 32
33
Henry Campen: Madam Chair, if I may make one… to one of the conditions that was added. With respect 34
to the access and landscaping, I’d just ask that condition be modified just slightly to provide that the 35
landscaping and mitigation of the fence be reasonably acceptable to the neighbors and to the staff. I think 36
that it’s an indication to testimony that the company is willing to work with the… staff. I would just like that to 37
be clear. 38
39
Michael Harvey: I have no objection; I’m just coming up with what I’ve written down. 40
41
Karen Barrows: I’m curious Michael; your staff doesn’t usually make recommendations on 5.3.2 A, B and C. 42
43
Michael Harvey: We don’t usually make recommendations prior to the public hea ring. The reason being is 44
that those have to be determined based on the testimony and evidence entered into the record. As we did 45
with the most recent BOA application, of course we did offer comment on an applicant’s compliance with 46
these sections as a staff recommendation during a hearing. We will never provide you an advanced 47
recommendation because that can be seen as trying to influence the jury as it would. 48
49
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25
Samantha Cabe: Did staff’s presentation raise any questions or need for rebuttal evidence or ad ditional 1
evidence from either the applicant or the contiguous land owners? 2
3
Henry Campen: Nothing about the staff’s presentation raises any concerns on behalf of the applicant. Your 4
counsel’s interpretation of the ordinance does raise some concerns, I can speak to that or not at the 5
appropriate time… 6
7
Samantha Cabe: Would the Board like the hear the applicants attorney’s opinion as to the necessary 8
findings that have been in dispute with staff and the Board’s Attorney?… Can you make like a 30 second 9
argument? 10
11
Henry Campen: With all due respect to my colleague… Courts are often called upon to interpret statues 12
that have provisions that appear to be… in conflict, It’s called statutory interpretation. And a fundamental.. 13
of statutory interpretation in the courts everywhere is that the courts have to interpret the statutes as a 14
whole as making sense, that there’s some purpose behind it. Even though there may be parts in conflict, 15
they have to harmonize those. That’s not an exactly analogy to what you’re doing h ere but it’s closest I can 16
come up with on the spur of the moment. I think to require an applicant for this project to resubmit an entire 17
application for a tower that’s been there for 20 years it just defies logic. And I don’t believe a court that’s 18
called upon to judge this issue would find that that’s required, would find that that’s a harmonious, logical, 19
reasonable interpretation requirement of the ordinance. I believe the way the staff has int erpreted this 20
where there are versions of the ordinance that address what is actually being proposed, yes he’s made 21
recommendations with respect to those in… But the balloon test, for goodness sake, the balloon test was 22
designed to give the neighbors some indication of where this tower’s going to appear on the hori zon. Well, 23
they’ve been looking at this tower for 20 years. So, that’s all I have to say. 24
25
Samantha Cabe: Thank you. Did that raise any questions for the Board? 26
27
Barry Katz: Just for a second… Resubmit the application; this is the concern that’s here. Mr. Bryan is 28
asking for a resubmission of the application, is that true? 29
30
James Bryan: No, I’m not asking for anything, I’m advising the Board that they need an affirmed finding on 31
all of the… 32
33
Barry Katz: Oh, ok so we’ve seen… 34
35
James Bryan: And how they do it is up to them. 36
37
Barry Katz: I see. Where we have, let’s say on page 200, is this not part of your ap plication? 38
39
Henry Campen: It is the application. 40
41
Barry Katz: Alright, so we have it. Ok. 42
43
Susan Halkiotis: That’s kind of my question too. Except for t hose things that have been changed since 44
1996… 45
46
Samantha Cabe: I have a proposal of how to do this. Once the staff has gotten all the information they 47
need from the other people in the room then I’ll ask for a motion to close to public hearing and enter in to 48
deliberations. 49
Approved 10/10/2016
26
1
MOTION made by Susan Halkiotis. Seconded by Matt Hughes. 2
3
Samantha Cabe: So the meeting is now closed and the BOA will begin deliberations. My suggestion to the 4
Board would be that we go through the different sections of the staff reco mmendations because there are 5
some sections where we can do as we usually do and adopt the recommendations because there’s no 6
conflict. When we get to the sections where there are conflict my recommendation is I have noted where 7
there’s conflict and we can talk about those individually and resolve those and then vote on the section as a 8
whole. If that is.. once we resolve those conflicts we can vote on the whole section. Does that make sense 9
to everyone, if I proceed that way? Does anyone have any objection s to that? 10
11
Ok so, the first section would be the application components which are reflected on page 105 and I do not 12
believe there was any conflict among staff and legal counsel as to any of these findings. Does anyone want 13
to discuss any of these findings? And if not, do I have a motion to approve to adopt the findings of staff with 14
regard to the application components that are set forth on page 105 of the attachment 4? 15
16
MOTION made by Barry Katz to adopt the application components. Seconded by Susan Hal kiotis. 17
VOTE: Unanimous 18
19
Samantha Cabe: The second section is reflected on page 106, are the notification requirements. Again, this 20
is a section where there was no dispute between staff and legal counsel. Do I have a motion to adopt the 21
recommendation of staff with regard to those findings? 22
23
MOTION made by Matt Hughes to adopt the recommendation of staff on page 106. Seconded by Karen 24
Barrows. 25
VOTE: Unanimous 26
27
Samantha Cabe: Moving on to page 107 we get into the specific standard section. The first page of the 28
specific standards are specific standards in general and not specific to telecommunication facilities, which 29
are set forth in section 5.3.2. I do not believe there was any dispute between staff and legal counsel for the 30
items on 107. Do I have a motion to adopt the findings of staff with regard to the findings set forth on page 31
107 of attachment 4? 32
33
MOTION made by Barry Katz to adopt the findings of staff on page 107. Seconded by Susan Halkiotis. 34
VOTE: Unanimous 35
36
Samantha Cabe: Moving on to page 108 and following pages, the standards specific for telecommunication 37
facilities. This is the section where we get into some discrepancy between staff and legal counsel, and I 38
believe the best way to do this is if there are no discrepancies on a page I will ask for a motion to adopt 39
what is on the specific page and then if we have a page where there is a discrepancy we’ll discuss the 40
conflicting finding, make a decision on that and then adopt the whole page. Is that satisfactory to the 41
Board? 42
43
So, page 108 I have not noted any discrepancies with regard to those findings, staff recommendations are 44
all yes with the supporting evidence listing there, mostly contained in their original permit that was 45
submitted through supplemental information. Do I have a motion to adopt? 46
47
MOTION made by Barry Katz to adopt the findings of staff on page 108. Seconded by Susan Halkiotis. 48
VOTE: Unanimous. 49
Approved 10/10/2016
27
1
Samantha Cabe: Page 109, do I have a motion to adopt the finding on page 109, which actually went with 2
the prior sub section? 3
4
MOTION made by Barry Katz to adopt the finding on page 109. Seconded by Susan Halkiotis. 5
VOTE: Unanimous 6
7
Samantha Cabe: Page 110, that is one finding, there is no conflict. Do I have a motion to adopt the finding 8
set forth on page 110? 9
10
MOTION made by Barry Katz to adopt finding on page 110. Seconded by Susan Halkiotis. 11
VOTE: Unanimous 12
13
Samantha Cabe: Page 111, there are 2 findings set forth on this page with the second finding being in 14
conflict. And that is a finding that there is a copy of the installed foun dation design including a due technical 15
sub surface soils investigation, an evaluation report and foundation recommendation for the proposed 16
wireless support structure. Just for the record, staff is indicating that this is not applicable because a 17
geotechnical evaluation was not required at the time that the original application was submitted in 1996. 18
And that there is no telecommunication facility proposed as part of this application, and we’ve heard the 19
Board’s legal counsel’s position on that. Do we have any discussion from the Board? 20
21
Barry Katz: Well, it seems like it’s not applicable because we’re really talking about a road. We’re not 22
modifying a tower, or the actual site where the tower is. And these are conditions that have changed and 23
that’s what the objection or concern is. But, it seems still not applicable in these circumstances. It could at 24
another time be really germane but not now… I think Mr. Bryan is right to raise this up but, this is a time 25
where it doesn’t seem to be germane. 26
27
Samantha Cabe: And I would note for our discussion as well that staff indicated that the evidence before us 28
in our packet does indicate compliance with current building codes and whether or not that might be 29
sufficient evidence to support a yes finding is up to the Board. So, if there’s no more discussion… I will 30
entertain a motion. 31
32
MOTION made by Barry Katz to adopt both articles on page 111 as recommended by planning staff. 33
Seconded by Susan Halkiotis. 34
VOTE: Unanimous 35
36
Samantha Cabe: Moving on to page 112, this again is a finding that is in conflict. The existing cell site’s 37
latitude, longitude and power levels to which this proposed site will be a handoff candidate. The staff is 38
recommending that this is not applicable as there’s no telecommunication facility pro posed as part of this 39
application. And counsel is recommending yes, staff is advised that if we do find an affirmative finding of 40
yes that support for that submission could be found at pages 205 to 240 of the supplemental information 41
that we were provided. 42
43
Barry Katz: I’m confused… I understand but this is about a handoff. That has nothing germane to this, what 44
we’re dealing with. I can see in the overall picture how that is, but I don’t see it. 45
46
Samantha Cabe: I think we’re dealing with fundamental different as to whether on a modification question 47
we’re considering the entire project again anew in a way, or if we’re just considering the parts of it that will 48
be modified. And I think in practical terms you can’t undo a cell tower that’s already there and so the only 49
Approved 10/10/2016
28
modifications that have been proposed are unrelated to the telecommunications tower. It’s my 1
understanding that what staff is saying here is that they’re maintaining their position throughout this 2
application that because it’s not recommending any telecommunication facility being added that this is the 3
reason for their non-applicable finding. However, there is evidence within the record that this information 4
was provided at some time. 5
6
Barry Katz: In this document? 7
8
Samantha Cabe: I have noted from Michael’s testimony pages 205 to 240. 9
10
Barry Katz: Yeah, ok. 11
12
Susan Halkiotis: In essence we can change the finding… Is that what you’re saying? 13
14
Samantha Cabe: We could, or we could find that it’s not applicable because there’s no telecommunication 15
facility proposed… 16
17
Barry Katz: If we were to change this to yes, would this oblige the applicant to take any action? 18
19
Samantha Cabe: No, I don’t think so. I don’t know what the rest of the Board thinks, I think it’s just a finding 20
that yes or no. 21
22
MOTION made by Barry Katz that the finding meets submission requirement on page 112. Seconded by 23
Susan Halkiotis. 24
VOTE: Unanimous 25
26
Samantha Cabe: On page 112, the Board has found that the existing cell sites to which this proposed site 27
will be a handoff candidate was provided in pages 205-240 of the supplemental information packet.. We are 28
making the finding the information provided in the supplemental packet meets this submission requirement. 29
30
On page 113, this is the submission requirement that propagation st udies of the proposed site and showing 31
all adjoining planned proposed in service or existing sites were provided. Again, staff is recommending the 32
finding that this provision is not applicable as there is no telecommunication facility proposed as part of t his 33
application. Additionally, it should be further noted that state law no longer requires the submittal of 34
propagation studies for telecommunication facilities. So I believe t his was one of the ones that we are 35
actually in agreement on. Do I have a motion with regard to… 36
37
MOTION made by Barry Katz to adopt findings recommended by staff on page 113. Seconded by Susan 38
Halkiotis. 39
VOTE: Unanimous 40
41
Samantha Cabe: On page 114 of attachment 4 with regard to those findings of fact there is no dispute 42
between staff and legal counsel with regard to those findings. They’re both suggested findings of yes. Do I 43
have a motion to adopt… 44
45
MOTION made by Barry Katz to adopt findings recommended by staff on page 114. Seconded by Karen 46
Barrows. 47
VOTE: Unanimous 48
49
Approved 10/10/2016
29
Samantha Cabe: Same with page 115, the findings that are set forth on 115, there’s no dispute between 1
staff and legal counsel. Do I have a motion to adopt those findings recommended by staff? 2
3
MOTION made by Barry Katz to adopt findings recommended by staff on page 11 5. Seconded by Susan 4
Halkiotis. 5
VOTE: Unanimous 6
7
Samantha Cabe: Onto page 116 of attachment 4. The 2 findings set forth there, again there’s no conflict 8
between staff and legal counsels recommendation. Do I have a motion to adopt the findings set forth on 9
page 116? 10
11
MOTION made by Karen Barrows to adopt findings recommended by staff on page 116. Seconded by 12
Barry Katz. 13
VOTE: Unanimous 14
15
Samantha Cabe: On page 117, I don’t have a note about this but the second finding set forth there staff is 16
recommending that it is not applicable on the basis that the provision is not applicable as the relocation of 17
the driveway will not impact the NIER levels of the proposed site. And that is with regard to a submission of 18
a certification that NIER levels at the proposed site are within the threshold levels adopted by the FCC. Do I 19
have a motion as to the 2 findings on that page? 20
21
MOTION made by Karen Barrows to adopt findings recommended by staff on page 117. Seconded by 22
Barry Katz. 23
VOTE: Unanimous 24
25
Samantha Cabe: Page 118, there are 3 findings there. The third finding on that page was the provision of 26
the FCC license. We have discussed making a condition of the approval of the permit. The other findings 27
were both yes with no discrepancy between staff and legal counsel ’s recommendation. Do I have a motion 28
with regard to the findings on page 118? 29
30
Barry Katz: That would mean that they would provide a copy? That’s what we’re proposing? 31
32
Samantha Cabe: Yes. 33
34
Barry Katz: With that being said I move to adopt that… Including the 3 p rovisions. 35
36
Samantha Cabe: So just to be clear your motion is to adopt the recommendation of staff set forth on page 37
118 with the added condition that a copy of the FCC license and 5 and 10 year building out plan shall be 38
provided as a condition of the issuance of the permit? 39
40
Barry Katz: Yes. 41
42
James Bryan: If I may, just for clarification, I think you’d want that last one yes, it’s the same idea that you 43
had.. and the only way to impose a condition is if it was necessary. 44
45
Samantha Cabe: Ok, got it. So just to clarify your motion is to adopt the recommendations set forth on page 46
118 with the modification to change the finding in the third fact to yes, with the condition that the applicant 47
provide a copy of the FCC license and their 5 and 10 year building out plan as required by the FCC as a 48
condition of the issuance of the SUP. 49
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30
1
Barry Katz: Yes, thank you. 2
3
MOTION made by Barry Katz to adopt findings recommended by staff on page 118. Seconded by Karen 4
Barrows. 5
VOTE: Unanimous 6
7
Samantha Cabe: On page 119 there are 4 findings of facts, 2 of which staff is recommending are not 8
applicable and the balloon test being one of them which we’ve heard the recommendation of counsel. Do I 9
have a motion with regard to 1 or all of the findings on that page? 10
11
MOTION made by Barry Katz to adopt findings recommended by staff on page 119. Seconded by Karen 12
Barrows. 13
VOTE: Unanimous 14
15
Samantha Cabe: On page 120 there are 3 findings of fact. The third finding of fact staff is recommending 16
that is not applicable and there is disagreement from legal counsel. Do I have a motion with regard to 1 or 17
all of the findings set forth on page 120? 18
19
Karen Barrows: I would be comfortable accepting staff ’s recommendations as there is no evidence that the 20
applicant is going to add anything to the tower. 21
22
MOTION made by Karen Barrows to adopt findings recommended by staff on page 120. Seconded by 23
Barry Katz. 24
VOTE: Unanimous 25
26
Samantha Cabe: Page 121 there’s 1 finding where there’s no conflict, do I have a motion to adopt that 27
finding? 28
29
MOTION made by Barry Katz to adopt finding recommended by staff on page 121. Seconded by Susan 30
Halkiotis. 31
VOTE: Unanimous 32
33
Samantha Cabe: On page 122, there are 5 findings of fact set forth there with several of them being non 34
applicable recommended by staff with some conflict from the legal counsel. Most of them dealing with the 35
balloon test. Do I have any motion with regard to 1 or all of the recommendations set forth on page 122? 36
37
MOTION made by Karen Barrows to adopt the findings recommended by staff on page 122. Seconded by 38
Susan Halkiotis. 39
VOTE: Unanimous 40
41
Samantha Cabe: On page 123, there are 2 findings. The first one dealing with the balloon test and the 42
recommended finding of non-applicable. Do I have a motion with regard to 1 or all of the findings on that 43
page? 44
45
James Bryan: If I may, I think you can go through 128 if you wanted to.. 46
47
Samantha Cabe: Thank you. So I will restate for the record, the findings set forth on page 123 through 128 48
are staff recommendations that there is no conflict between staff and legal counsel. Do I have a motion with 49
Approved 10/10/2016
31
regard to all the findings set forth on pages 123 through 128 of attachment 4? 1
2
MOTION made by Susan Halkiotis to adopt findings recommended by staff on pages 123 through 128. 3
Seconded by Barry Katz. 4
VOTE: Unanimous 5
6
Samantha Cabe: Thank you Mr. Bryan. Beginning on page 129 there are 3 findings of fact with the first 7
being non applicable and you may recall that the applicant did present testimony that utilities provided to 8
the site will be underground. Do I have a motion with regard to 1 or all of the findings on that page? 9
10
Karen Barrows: I’ll make a motion that we accept these items with the staff recommendations. 11
12
Samantha Cabe: I have a friendly amendment to that. I would ask that you amend your motion to include 13
modifying the finding with regard to the first finding of fact on page 129 that the finding of yes, based upon 14
the applicant testimony that utilities be installed underground. 15
16
Karen Barrows: Ok, so I will modify the motion to say that all 3 of these have a yes. 17
18
MOTION made by Karen Barrows to make a finding of yes for the findings on page 129. Seconded by 19
Susan Halkiotis. 20
VOTE: Unanimous 21
22
Samantha Cabe: Page 130, there are 2 findings of fact and I do not believe there are conflicts between 23
legal counsel and staff. Do I have a motion with regard to those findings? 24
25
MOTION made by Barry Katz to adopt findings recommended by staff on page 130. Seconded by Susan 26
Halkiotis. 27
VOTE: Unanimous 28
29
Samantha Cabe: Page 131, the 2 findings of fact. The 2 findings set for th there, there’s no conflict between 30
staff and legal counsel. Do I have a motion with regard to those findings? 31
32
MOTION made by Karen Barrows to adopt findings recommended by staff on page 131. Seconded by 33
Barry Katz. 34
VOTE: Unanimous 35
36
Samantha Cabe: On page 132, there are 3 findings. The finding regarding lighting there is some difference 37
of opinion. The opinion of staff is that the ordinance reads that if lighting is required or proposed that these 38
submissions are required and it’s staffs position that the lighting is not proposed or required with this 39
project, so they have recommended a finding of non-applicable. Do I have a motion with regard to 1 or all of 40
the findings on this page? 41
42
Barry Katz: Now, the counsel recommended something different? 43
44
Samantha Cabe: I believe I had noted that counsel believed that there needed to be something submitted 45
with regard to lighting. 46
47
MOTION made by Barry Katz to adopt findings recommended by staff on page 132. Seconded by Susan 48
Halkiotis. 49
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32
VOTE: Unanimous 1
2
Samantha Cabe: Page 133, the 2 findings there; the recommended findings of staff are yes, there’s no 3
conflict that I noted. Is there a motion with regard to 1 or both those findings? 4
5
MOTION made by Susan Halkiotis to adopt findings recommended by staff on page 132 . Seconded by 6
Karen Barrows. 7
VOTE: Unanimous 8
9
Samantha Cabe: Page 134, there are 5 findings there. I have in my notes that the fourth finding staff 10
recommended changing that to a finding of yes based on evidence of the existing bond in place. And that 11
modification to staff recommendation was from Mr. Harvey’s testimony. Do I have a motion with regard to 12
those findings? 13
14
Barry Katz: I move to adopt them with the change that the fourth item, 5.10.8 B5 be changed to a yes. 15
16
MOTION made by Barry Katz. Seconded by Susan Halkiotis. 17
VOTE: Unanimous 18
19
Samantha Cabe: The recommendations of staff set forth on page 134 is modified by testimony or adopted 20
by the Board… Page 135, we will go through these separately. The first finding that we must make is that 21
the use will or will not maintain or promote the public health, safety, and general welfare if located where 22
proposed and developed and operated according to the plan as submitted. 23
24
Barry Katz: I have a question. Do we have to do anything about these recommendations before we finish 25
page 135 or can we do it after? 26
27
Samantha Cabe: It’s my understanding that we make these findings and then before we make the ultimate 28
decision to approve the permit, we make a motion to approve would be conditions. So we can go through 29
these findings first. 30
31
Barry Katz: Well, I move that we accept the applicants application for section 5.3.2 A to A. That first one, as 32
far as maintain/promote the public health and safety. 33
34
MOTION made by Barry Katz. Seconded by Susan Halkiotis. 35
VOTE: Unanimous 36
37
Samantha Cabe: With regard to the second finding, do I have a motion? 38
39
Karen Barrows: I’ll make a motion that the use will maintain or enhance the value of the contiguous 40
property. 41
42
MOTION made by Karen Barrows. Seconded by Barry Katz. 43
VOTE: Unanimous 44
45
Samantha Cabe: And the third finding that we’re required to make that the location and character of the 46
use, if developed according to the plan submitted, will or will not be in harmony with the area in which it is 47
to be located, and the use is in compliance with the plan for the physical development of the County as 48
embodied in these regulations or in the comprehensive plan or portion thereof adopted by the Board Of 49
Approved 10/10/2016
33
County Commissioners. Do I have a motion with regard to that finding? 1
2
Barry Katz: I’ll move that the submitted plan will be in harmony with the area in which it is located. And 3
comply. 4
5
MOTION made by Barry Katz. Seconded by Susan Halkiotis. 6
VOTE: Unanimous 7
8
Samantha Cabe: So do I have a motion with regard to whether this Board should app rove or not approve 9
the application for the SUP with or without conditions? 10
11
Barry Katz: I move that we adopt this plan with the conditions stated on pages 136 and 137… 12
13
Samantha Cabe: So if we could make a friendly amendment to your motion to approve thi s permit with the 14
10 conditions set forth on pages 136 through 137 of attachment 4 and adding 3 additional conditions to the 15
issuance of the SUP. The first condition being that signage be posted at the end of Old Oak Place to 16
indicate that the road is a dead end or a similar message notifying the end of the right of way. The second 17
additional proposed condition is that the applicant submit a revised site plan including the location of the 18
entrance gate that was not submitted on their current site plan and that the gate location not be located on 19
Old Oak Place, but placed out of view from the Bouche’s property and to be placed in such a manner that is 20
reasonably acceptable to staff and the contiguous land owners. 21
22
Barry Katz: There was also the suggestion of some vegetation to enhance the landscape. 23
24
Samantha Cabe: So I think that might be within the requirement that they submit a revise site plan to reflect 25
the location of the entrance gate and that that gate not be located on Old Oak place but be placed out of 26
view from the Bouche’s residence and include the location of any landscaping that may be done to make it 27
reasonably acceptable to staff and contiguous landowners. Can we work with that? And I would 28
recommend the third condition to be added to your motion that the applicant provides a copy of their FCC 29
license and 5 to 10 year building out plan that was required by the FCC to be submitted to them. 30
31
Barry Katz: I accept those friendly suggestions and I motion. 32
33
MOTION made by Barry Katz. Seconded by Susan Halkiotis. 34
VOTE: Unanimous 35
36
37
AGENDA ITEM 6: ADJOURNMENT 38
39
MOTION made by Barry Katz. Seconded by Susan Halkiotis. 40
41
42
_________________________________________ 43
NAME OF CHAIR, CHAIR44
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OC Board of Adjustment – 11/9/15 Page 1 of 66
After considering all written and oral evidence presented at the PUBLIC HEARING, the Board made the follo wing 1
findings: 2
a. The application was complete per the provisions of the Ordinance, 3
b. The application demonstrated compliance with the applicable provisions of the Ordinance, 4
c. The applicant, through the submittal of correspondence as well as through direct testi mony offered during the 5
hearing, demonstrated that the project was compliant with the various provisions of Section 5.3.2 of the 6
Ordinance, 7
d. The applicant, within the application itself as well as through direct testimony of experts, demonstrated that the 8
project complied with the various site-specific development criteria detailed within Section 5.10.8 of the 9
Ordinance, and 10
e. There was no evidence offered into the record demonstrating the applicant had not met their burden as detailed 11
within the UDO with respect to the approval of the application as submitted. 12
In addition, the Board made affirmative findings on the following standards contained within Section 5.3.2 (A) (2): 13
i. The use will maintain or promote the public health, safety and general welfare, if loc ated where 14
proposed and developed and operated according to the plan as submitted. 15
The applicant and staff provided testimony indicating that the proposed use will maintain the public 16
health, safety, and general welfare if developed on the subject property . There was no evidence 17
entered into the record refuting the applicant’s testimony concerning the project’s compliance with 18
respect to the promotion of the public health, safety, and general welfare. 19
The Board voted unanimously to make a finding that the applicant had met their burden and proved 20
that the proposed use would maintain or promote the health, safety, and general welfare if developed. 21
22
ii. The use will maintain or enhance the value of contiguous property. 23
RECOMMENDATION:
While staff has not received any comments from local residents and property owners indicating the project, as submitted, does not comply
with the UDO and no information has been submitted to staff establishing the grounds for making a negative finding on the gen eral
standards as detailed herein. These standards include maintaining or promoting the public health, safety, and general welfare, maintaining
or enhancing the value of contiguous property, the use is in harmony with the area in which it is to be located, and the use being in
compliance with the general plan for the physical development of the County.
Staff has reviewed the application, the site plan, and all supporting documentation and has found that the applicant complies with the
specific standards and required regulations as outlined within the UDO
Provided the Board of Adjustment finds in the affirmative on the specific and general standards as detailed herein, and no ev idence is
entered into the record demonstrating the applicant has either:
a. Failed to meet their burden of proof that the project complies with the specific development standards for a telecommunication
facility, or
b. Fails to comply with the general standards detailed within Section 5.3.2 (A) (2)
of the UDO, the Board could make an affirmative finding on this application.
In the event that the Board makes an affirmative finding, and issues the permit, staff recommends the attachment of the follo wing
conditions:
DRAFT
OC Board of Adjustment – 11/9/15 Page 2 of 66
The applicant had an expert testify that the proposed re-location of the driveway would not impact 1
adjacent property values.There was no evidence entered into the record refuting the applicant’s 2
testimony or the impact analysis report. 3
In the end, the Board voted unanimously to make a finding that the applicant had met her burden and 4
proved that the proposed use was compliant with the established standard. 5
6
iii. The location and character of the use, if developed according to the plan submitted, will be in harmony 7
with the area in which it is to be located and the use is in compliance with the plan for the physical 8
development of the County as embodied in these regulations or in the Comprehensive Plan, or portion 9
thereof, adopted by the Board of County Commissioners. 10
The applicant and staff provided testimony indicating that the proposed use was in character with the 11
area based on the requirements of the Ordinance and the Comprehensive Plan. The Board voted 12
unanimously indicating that the applicant had met her burden of proof for this required findin g. 13
14
After considering all written and oral evidence presented at the PUBLIC HEARING, the Board voted unanimously to 15
approve the SUP application subject to the following conditions: 16
1. Nothing associated with this approval shall be deemed as prohibiting the u se of the subject parcel as a farm or 17
prevent the maintenance of existing utilities with the exception of preserving the access easement as denoted 18
on the approved site plan. 19
2. Nothing associated with this approval shall be seen as modifying the existing tel ecommunication tower other 20
than the relocation of the existing driveway off of Landau Drive. 21
3. Final assignment of a street address shall be completed by Orange County Land Records prior to the issuance 22
of any permit authorizing land disturbing activity on the property. 23
4. The applicant shall be required to obtain all required North Carolina Department of Transportation approvals 24
and permits allowing for the creation of the driveway prior to the commencement of land disturbing activity. 25
5. Orange County Emergency Services shall review and issue approval for the proposed access road serving the 26
tower. 27
6. The applicant shall obtain all necessary development permits from the County prior to the initiation of and land 28
disturbing activity associated with the construction of the new driveway including, but not limited to: 29
a. Erosion Control/Stormwater Management Permit, 30
b. Solid Waste Management Permit, and 31
c. Zoning Compliance Permit. 32
As part of the review of proposed construction drawings roadway, the Orange County Erosion Contro l shall 33
review and evaluate all proposed stream crossings to ascertain if additional permits are required. 34
7. Any and all abandoned structures shall be removed within 12 months as required under Section 5.10.8 (B) (4) (t) 35
8. As required under Section 5.10.8 (B) (4) (v) electromagnetic radiation levels shall be maintained in compliance 36
with applicable FCC regulations. 37
9. The applicant, working with the Department of Transportation, shall cause signage to be posted indicting Old 38
Oak Place is a dead end road and denoting the end of the State maintained right-of-way. 39
10. The applicant shall cause the development of a revised site plan denoting the location of a second gate, not 40
adjacent to Old Oak Place or in view of the adjacent property owners, that is reasonably acceptabl e to staff and 41
adjacent property owners. The applicant shall install vegetation in and around the second gate to screen it 42
from view. 43
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OC Board of Adjustment – 11/9/15 Page 3 of 66
11. The applicant shall provide a copy of the FCC license for the existing telecommunication tower as required 1
under Section 5.10.8 (A) (1) (t) of the UDO. 2
12. The Special Use Permit will automatically expire within 12 months from the date of approval if the use has not 3
commenced or construction has not commenced or proceeded unless a timely application for extension of this 4
time limit is approved by the Board of Adjustment. 5
13. If any condition of this Special Use Permit shall be held invalid or void, then this Special Use Permit shall be 6
void in its entirety and of no effect. 7
REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
APPLICATION COMPONENTS
Proper forms 2.2 Application (Attachment 2) Yes Yes
Fees paid 2.2.4(D) Staff Testimony/Application
(Attachment 2)
Yes
Yes
Full description of use
Location
Appearance
Operational characteristics
2.7.3(B)(1) Application (Attachment 2 and Site
plan)
Yes
Yes
Owner Information 2.7.3(B)(2) Application (Attachment 2 and Site
plan)
Yes Yes
Information needed for Use
Standards
2.7.3(B)(3) Application (Attachment 2 and Site
Plan)
Yes
Yes
Site Plans
(10 copies for Class B; 26 for Class
A)
2.7.3(B)(4) Application/Staff Testimony (Site
plan)
Yes
Yes
Preliminary Subdivision Plat (if
necessary)
2.7.3(B)(5) [No subdivision proposed.] N/A
List of parcels within 1,000 feet
2.7.3(B)(6) Application (Attachment 2) Yes Yes
Elevations of all structures 2.7.3(B)(7) Project does not involve the erection
of a structure, just a relocation of a
driveway
N/A N/A
Environmental Assessment (or
EIS)
Topography
Drainage issues
Natural or Cultural resources
Mining
Hazardous Wastes
Wastewater treatment
Water usage
2.7.3(B)(8) Project exempt per Section(s)
6.16.2 and 6.16.3 of UDO
Proposed level of land disturbance
for project does not meet
established thresholds for an
environmental assessment to be
completed.
Proposed new driveway will only
result in 14,000 sq.ft. of land
disturbing activity.
N/A N/A
Method of Debris Disposal
2.7.3(B)(9) Applicant Testimony Yes Yes
Development Schedule
2.7.3(B)(10) Application (Site plan) Yes Yes
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OC Board of Adjustment – 11/9/15 Page 4 of 66
Extended Vesting Request
2.7.3(B)(11) Not requested N/A N/A
1
DRAFT
OC Board of Adjustment – 11/9/15 Page 5 of 66
1
REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
NOTIFICATION REQUIREMENTS
Public Notice
Date
Time
Place
2.7.5(a) Abstract (Attachment 3) Yes Yes
Published in Newspaper
Two successive weeks
First notice at least ten days
prior but no more than twenty-
five days prior
2.7.5(b) Abstract (Attachment 3) and Staff
Testimony
Yes Yes
Sign Posting on Property (at least
10 days prior)
2.7.5(c) Staff Testimony (Attachment 3
posted sign on January 1, 2016
Yes Yes
Mailed Notice
All adjacent property owners
(within 1000 ft.)
Not less than fifteen days prior
2.7.5(d) Abstract (Attachment 3) Yes Yes
2
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OC Board of Adjustment – 11/9/15 Page 6 of 66
1
REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
SPECIFIC STANDARDS
Waste Disposal
Method and adequacy of provision
for sewage disposal facilities, solid
waste and water service.
5.3.2(B)(1) Both Environmental Health and
Solid Waste have indicated they
have no concerns given the fact the
project only involves the
development of a driveway.
Conditions are recommended to
require Solid Waste Permit as part
of typical development review
process.
Yes Yes
Safety
Method and adequacy of police, fire
and rescue squad protection.
5.3.2(B)(2) Abstract and Staff Testimony
Orange County Emergency Service
staff and the Sheriff’s office have
indicated the project can be served.
Yes
Yes
Vehicle Access
Method and adequacy of vehicle
access to the site and traffic
conditions around the site.
5.3.2(B)(3) Application and Site plan
There will not be an appreciable
traffic increase in the area
associated with the relocation of a
driveway serving the existing
telecommunication facility through
Old Oak Place (SR 2268).
Yes Yes
2
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OC Board of Adjustment – 11/9/15 Page 7 of 66
1
REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
STANDARDS for Telecommunication Facilities
Site Plan
A site plan prepared in accordance
with Section 2.5 of UDO
5.10.8 (A)
(1) (a)
Application, Applicant Testimony,
Staff Testimony, and Site plan
Yes Yes
A detailed description of the
proposed telecommunication
support structure (i.e. monopole,
self-supporting lattice, etc.)
including a detailed narrative
description and explanation of the
specific objective(s) for the new
facility including a description as to
the coverage and/or capacity,
technical requirements, and the
identified boundaries of the specific
geographic area of intended
coverage for the proposed
telecommunication support
structure.
5.10.8 (A)
(1) (b)
Original Special Use Permit
Application file and recorded Special
Use Permit allowing for the erection
of the approved tower. This
information can be found on page(s)
200 through 240 of the
supplemental information supplied
to the Board.
The original application file for the
project contains a description of the
telecommunication tower as well as
a narrative explaining the objectives
of the tower as proposed in 1996.
The recorded Special Use Permit
also contains a description of the
approved tower, specifically a 160 ft.
monopole telecommunication tower.
The existing facility will not be
modified as part of this request. All
that is being modified is the access
driveway serving the tower from
Landau Drive to Old Oak Place (SR
2268).
Yes
Yes
Elevation drawings and color
renderings of the proposed tower.
5.10.8 (A)
(1) (c)
Original Special Use Permit
Application file and recorded Special
Use Permit allowing for the erection
of the approved tower. This
information can be found on page(s)
200 through 240 of the
supplemental information supplied
to the Board.
This information was part of the
original application package
reviewed and approved by the
Board of Adjustment on April 8,
1996.
Yes Yes
A signed statement from the
applicant certifying that the
proposed telecommunication
support structure:
5.10.8 (A)
(1) (d)
Original Special Use Permit
Application file and recorded Special
Use Permit allowing for the erection
of the approved tower. This
information can be found on page(s)
200 through 240 of the
Yes Yes
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OC Board of Adjustment – 11/9/15 Page 8 of 66
(i) Shall be maintained in a safe
manner,
(ii) Is in compliance with all
conditions of all applicable permits
and authorizations without
exception, and
(iii) Is in compliance with all
applicable and permissible local,
State, and Federal rules and
regulations.
supplemental information supplied
to the Board.
Statements contained within the
application package indicate the
structure shall be constructed in a
safe manner and would be
constructed in compliance with
applicable local, State, and Federal
regulations.
As the request will not alter the
existing tower, merely the driveway
access approved by the Board of
Adjustment on April 8, 1996, staff
believes the original documentation
contained within the 1996 permit
application is still relevant and
applicable to this petition.
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1
REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
STANDARDS for Telecommunication Facilities (continued)
A statement, prepared by a
professional engineer certifying the
tower's compliance with applicable
standards as set forth in the State
of North Carolina Building Code,
any associated regulations; and
describing the tower's capacity.
5.10.8 (A)
(1) (e)
1. Original Special Use Permit
Application file,
2. Recorded Special Use
Permit allowing for the
erection of the approved
tower, and
3. A Structural Analysis report
completed by B ant T
Engineering, sealed by Chad
Tuttle, describing the tower’s
capacity and structural
integrity as well as
compliance with applicable
State building code dated
August 9, 2010, and
4. A Structural Analysis report
completed by B ant T
Engineering, sealed by Chad
Tuttle, describing the tower’s
capacity and structural
integrity as well as
compliance with applicable
State building code dated
April 30, 2014.
The Tower’s capacity is not an issue
as nothing associated with the
relocation of the driveway impacts
its compliance with State Building
code Standards.
This information can be found on
page(s) 200 through 341 of the
supplemental information supplied
to the Board.
Yes Yes
A statement indicating how the
proposed tower will minimize visual
intrusiveness to surrounding
properties in the area.
5.10.8 (A)
(1) (f)
1. Original Special Use Permit
Application file (pages 205-
240 of supplemental
information package)
2. Recorded Special Use
Permit allowing for the
erection of the approved
tower (pages 200-204 of
supplemental information
package),
3. Current applicant submitted
site plan, and
4. Property vicinity map
Yes Yes
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OC Board of Adjustment – 11/9/15 Page 10 of 66
(Attachment 1) denoting the
location of the tower with
respect to its proximity to
adjacent properties.
The tower already in existence and
nothing proposed will invalidate the
original finding related to the
structure not representing a visual
intrusion to surrounding properties.
The Site Plan denotes the planting
of vegetation along the proposed
new driveway to minimize the visual
impact of the new driveway.
A copy of the installed foundation
design including a geotechnical
sub-surface soils investigation,
evaluation report, and foundation
recommendation for the proposed
wireless support structure.
5.10.8 (A)
(1) (g)
Staff is recommending a finding that
this provision is not applicable as
there is no telecommunication
facility proposed as part of this
application.
The proposed modification will not
modify or alter the existing
telecommunication tower structure
as approved by the Board of
Adjustment on April 8, 1996 and
constructed thereafter. As the tower
is not being modified or relocated,
previous findings made by the
Board of Adjustment, in approving
the original application, with respect
to the appropriateness of the soil in
supporting the foundation of a
telecommunication tower are still
valid.
N/A N/A
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1
The existing cell sites (latitude,
longitude, power levels) to which
this proposed site will be a handoff
candidate.
5.10.8 (A)
(1) (h)
Staff is recommending a finding that
this provision is not applicable as
there is no telecommunication
facility proposed as part of this
application.
This was not a requirement
contained within the County’s land
use regulations in 1996.
According to the original permit
findings of fact on this case (pages
205-240 of the supplemental
information packet) the closest
tower to this property was 6,000 feet
west of the property.
The proposed modification,
specifically the relocation of the
access driveway from Landau Drive
to Old Oak Place, will not impact the
current operational capacity of the
existing telecommunication tower
nor require the modification of
surrounding telecommunication
facilities to address service issues.
N/A Yes
Propagation studies of the
proposed site and showing all
adjoining planned, proposed, in-
service or existing sites.
5.10.8 (A)
(1) (i)
Staff is recommending a finding that
this provision is not applicable as
there is no telecommunication
facility proposed as part of this
application.
It should further be noted State law
no longer requires the submittal of
propagation studies for
telecommunication facilities or
allows the lack of same to a basis of
denial.
The request to relocate the driveway
from Landau Drive to Old Oak Place
is not related to the development of
a telecommunication tower in
Orange County.
Propagation studies are designed to
demonstrate a need for service in a
given area thereby serving as a
justification for an applicant in
locating such a facility where
proposed.
N/A N/A
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OC Board of Adjustment – 11/9/15 Page 12 of 66
As this request only involves the
relocation of a driveway serving an
existing tower, whose operation
shall not be impacted by said
change, a propagation study is not
warranted.
The search ring utilized in finding
the proposed site.
5.10.8 (A)
(1) (j)
Original Special Use Permit
Application file and recorded Special
Use Permit allowing for the erection
of the approved tower.
This information can be found on
pages 200 through 240 of the
supplemental application packet
supplied to the Board.
The original application file
demonstrated the need for a
telecommunication tower in this
area and the Board, after holding
the required public hearing,
determined the standard had been
met.
As nothing associated with the
relocation of the access driveway for
the telecommunication facility alters
the operational parameters of the
approved and constructed tower,
this information is still viable.
Yes Yes
The number, type, height, and
model of the proposed antennas
along with a copy of the applicable
specification sheet(s).
5.10.8 (A)
(1) (k)
1. Original Special Use Permit
Application file,
2. Recorded Special Use
Permit allowing for the
erection of the approved
tower, and
3. A Structural Analysis report
completed by B ant T
Engineering, sealed by Chad
Tuttle, describing the tower’s
capacity and structural
integrity as well as
compliance with applicable
State building code dated
August 9, 2010, and
4. A Structural Analysis report
completed by B ant T
Engineering, sealed by Chad
Tuttle, describing the tower’s
capacity and structural
integrity as well as
compliance with applicable
Yes Yes
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OC Board of Adjustment – 11/9/15 Page 13 of 66
State building code dated
April 30, 2014.
Required information is outlined
within this supplemental document.
1
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1
REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
STANDARDS for Telecommunication Facilities (continued)
The make, model and manufacturer
of the tower and antenna(s),
antenna heights and power levels
of proposed site.
5.10.8 (A)
(1) (l)
Original Special Use Permit
Application file and recorded Special
Use Permit allowing for the erection
of the approved tower as contained
in the supplemental information
packet (pages 200 through 240).
The original application identified
this information.
Yes Yes
The frequency, modulation and
class of service of radio or other
transmitting equipment.
5.10.8 (A)
(1) (m)
1. Original Special Use Permit
Application file,
2. A Structural Analysis report
completed by B ant T
Engineering, sealed by Chad
Tuttle, describing the tower’s
capacity and structural
integrity as well as
compliance with applicable
State building code dated
August 9, 2010, and
3. A Structural Analysis Report
completed by FDH
Engineering Inc., sealed by
Christopher Ply, describing
the tower’s capacity and
structural integrity as well as
compliance with applicable
State building code dated
April 30, 2014.
This information is contained
throughout all identified documents.
There is also specific detail(s)
referenced on page(s) 323-341 of
the supplemental package.
The Tower’s capacity is not an issue
as nothing associated with the
relocation of the driveway impacts
the frequency, modulation, and
class of service of equipment.
Yes Yes
The maximum transmission power
capability of all radios, as designed,
if the applicant is a cellular facility.
5.10.8 (A)
(1) (n)
1. Original Special Use Permit
Application file,
2. A Structural Analysis report
completed by B ant T
Engineering, sealed by Chad
Tuttle, describing the tower’s
capacity and structural
Yes Yes
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OC Board of Adjustment – 11/9/15 Page 15 of 66
integrity as well as
compliance with applicable
State building code dated
August 9, 2010, and
3. A Structural Analysis Report
completed by FDH
Engineering Inc., sealed by
Christopher Ply, describing
the tower’s capacity and
structural integrity as well as
compliance with applicable
State building code dated
April 30, 2014.
This information is contained
throughout all identified documents.
There is also specific detail(s)
referenced on page(s) 323-341 of
the supplemental package.
The actual intended transmission
and the maximum effective radiated
power of the antenna(s).
5.10.8 (A)
(1) (o)
1. Original Special Use Permit
Application file,
2. A Structural Analysis report
completed by B ant T
Engineering, sealed by Chad
Tuttle, describing the tower’s
capacity and structural
integrity as well as
compliance with applicable
State building code dated
August 9, 2010, and
3. A Structural Analysis Report
completed by FDH
Engineering Inc., sealed by
Christopher Ply, describing
the tower’s capacity and
structural integrity as well as
compliance with applicable
State building code dated
April 30, 2014.
This information is contained
throughout all identified documents.
There is also specific detail(s)
referenced on page(s) 323-341 of
the supplemental package.
Yes Yes
The direction(s) of maximum lobes
and associated radiation of the
antenna(s).
5.10.8 (A)
(1) (p)
1. Original Special Use Permit
Application file,
2. A Structural Analysis report
completed by B ant T
Engineering, sealed by Chad
Tuttle, describing the tower’s
capacity and structural
integrity as well as
Yes Yes
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OC Board of Adjustment – 11/9/15 Page 16 of 66
compliance with applicable
State building code dated
August 9, 2010, and
3. A Structural Analysis Report
completed by FDH
Engineering Inc., sealed by
Christopher Ply, describing
the tower’s capacity and
structural integrity as well as
compliance with applicable
State building code dated
April 30, 2014.
This information is contained
throughout all identified documents.
There is also specific detail(s)
referenced on page(s) 323-341 of
the supplemental package.
Certification that the NIER levels at
the proposed site are within the
threshold levels adopted by the
FCC.
5.10.8 (A)
(1) (q)
Staff is recommending a finding that
this provision is not applicable as
the relocation of the driveway, as
proposed, will not impact the NEIR
levels of the proposed site.
N/A N/A
Certification that the proposed
antenna(s) will not cause
interference with other
telecommunications devices.
5.10.8 (A)
(1) (r)
1. A Structural Analysis report
completed by B ant T
Engineering, sealed by Chad
Tuttle, describing the tower’s
capacity and structural
integrity as well as
compliance with applicable
State building code dated
August 9, 2010, and
2. A Structural Analysis Report
completed by FDH
Engineering Inc., sealed by
Christopher Ply, describing
the tower’s capacity and
structural integrity as well as
compliance with applicable
State building code dated
April 30, 2014.
This information is contained
throughout these reports indicating
the antenna on the existing
telecommunication tower will not
cause interference.
Yes Yes
A written affidavit stating why "the
proposed site is necessary for their
communications service".
5.10.8 (A)
(1) (s)
Application (Attachment 2) contains
a narrative outlining the rationale
and need with respect to relocating
the existing driveway in order to
ensure the continued provision of
Yes Yes
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OC Board of Adjustment – 11/9/15 Page 17 of 66
communication services.
A copy of the FCC license
applicable for the intended use of
the facility as well as a copy of the
5 and 10 year building out plan
required by the FCC.
5.10.8 (A)
(1) (t)
Staff is recommending a finding that
this provision is not applicable as
the proposal does not impact the
existing FFC license for the facility.
N/A N/A
1
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1
REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
STANDARDS for Telecommunication Facilities (continued)
Applications for the co-location of
antennas
5.8.10 (A)
(2)
Staff is recommending a finding that
this provision is not applicable as
the proposal does not involve the
co-location of an antenna.
N/A N/A
Overall Policy and Desired Goals
Alternatives to constructing new
wireless support structures,
placement to minimize adverse
aesthetic impacts, etc.
5.8.10 (B)
(1) (a) and
(b)
Application (Attachment 2)
As proposed the modification will
ensure the continued operation of
the existing telecommunication
facility.
This could help to potentially
minimize the need for additional
facilities in the area as this facility
will be allowed to continue operation
with a relocated driveway.
Yes Yes
Balloon Test
5.8.10 (B)
(2)
Staff is recommending a finding that
this provision is not applicable as
the proposal does not involve the
erection of a new
telecommunication tower requiring
the holding of a balloon test.
This section requires a balloon test
for ‘proposed new wireless facilities’.
As no new wireless facilities were
proposed a balloon test was not
required.
The required neighborhood meeting,
however, was held on November
30, 2015. Please refer to
Attachment 3 for more information.
N/A N/A
Submittal of site plan 5.8.10 (B)
(3) (a)
Application (Attachment 2), Site
plan, Applicant Testimony, Staff
testimony. Site plan denotes the
location of the new driveway.
Yes Yes
Plans and elevations for all
proposed structures and
descriptions of the color and nature
of all exterior material, along with
the make, model, and manufacturer
of the proposed structure,
maximum antenna heights, and
power levels.
5.8.10 (B)
(3) (b)
Original Special Use Permit
Application file and recorded Special
Use Permit allowing for the erection
of the approved tower. This
information can be found on page(s)
200 through 240 of the
supplemental information supplied
to the Board.
The original application file for the
Yes Yes
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OC Board of Adjustment – 11/9/15 Page 19 of 66
project contains a description of the
telecommunication tower as well as
a narrative explaining the objectives
of the tower as proposed in 1996.
The recorded Special Use Permit
also contains a description of the
approved tower, specifically a 160 ft.
monopole telecommunication tower.
The structural analysis contained on
pages 242 through 341 of the
supplemental information package
provides additional detail on the
antenna as well.
The existing facility will not be
modified as part of this request. All
that is being modified is the access
driveway serving the tower from
Landau Drive to Old Oak Place (SR
2268).
A Landscape and Tree
Preservation Plan
5.8.10 (B)
(3) (c)
Application (Attachment 2) ; Site
Plan ; Vicinity Map (Attachment 1).
Existing vegetation around the tower
is not being impacted thereby
invalidating the County’s previous
approval.
Sheet C-1A of the site plan denotes
the planting of additional vegetation
around the driveway and tower
compound in an effort to augment
existing vegetation.
Yes Yes
Evidence that the applicant has
investigated the possibilities of
placing the proposed equipment on
an existing wireless support
structure.
5.8.10 (B)
(3) (d)
Staff is recommending a finding that
this provision is not applicable as
the proposal does not involve the
placement of ‘equipment’ on the
tower requiring an assessment of
available space on adjacent towers.
N/A N/A
Documentation from applicable
state or federal agencies indicating
requirements, which affect the
appearance of the proposed
wireless support structure, such as
lighting and coloring.
5.8.10 (B)
(3) (e)
Original Special Use Permit
Application file and recorded Special
Use Permit allowing for the erection
of the approved tower. This
information can be found on page(s)
200 through 240 of the
supplemental information supplied
to the Board.
The original application file for the
project contains a description of the
telecommunication tower as well as
a narrative explaining the objectives
Yes Yes
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OC Board of Adjustment – 11/9/15 Page 20 of 66
of the tower as proposed in 1996.
Given the height of the tower no
lighting or ‘appearance’ issues had
to be addressed for the tower to be
erected.
The existing facility will not be
modified as part of this request. All
that is being modified is the access
driveway serving the tower from
Landau Drive to Old Oak Place (SR
2268).
1
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1
REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
STANDARDS for Telecommunication Facilities (continued)
Draft bond guaranteeing removal of
the wireless support structure in the
event that it is abandoned or
unused for a period of 12 months.
5.8.10 (B)
(3) (f)
Staff is recommending a finding that
this provision is not applicable as
the proposal does not invalidate the
existing removal bond for the facility
N/A N/A
A listing of, and current tax map
identifying, all property owners
within 1,000 feet of the parcel
5.8.10 (B)
(3) (g)
Application (Attachment 2) Yes Yes
A report containing any comments
received by the applicant in
response to the balloon test along
with color photographs from various
locations around the balloon.
5.8.10 (B)
(3) (h)
Staff is recommending a finding that
this provision is not applicable as no
balloon test was done or required
for this project as the request did not
involve any alteration (i.e. increasing
height) of the existing, approved,
tower or propose a ‘new wireless
support structure’
.
N/A N/A
Evidence that the balloon test
requirement has been met.
5.8.10 (B)
(3) (i)
Staff is recommending a finding that
this provision is not applicable as no
balloon test was done or required to
allow for the re-location of the
existing driveway.
A balloon test was not required as
the application did not proposed a
‘new wireless support structure’ as
detailed in Section 5.8.10 (B) (2) of
the UDO.
N/A N/A
A notarized statement that the sign
posting requirement has been met.
5.8.10 (B)
(3) (j)
Staff is recommending a finding that
this provision is not applicable as no
balloon test was done or required
for the project given the fact the
erection of a tower was not part of
the request.
A balloon test was not required as
the application did not proposed a
‘new wireless support structure’ as
detailed in Section 5.8.10 (B) (2) of
the UDO.
N/A N/A
Photographs of a clearly visible
balloon floated at the proposed
tower location as well as
photographs with the proposed
tower and associated antennas
5.8.10 (B)
(3) (k)
Staff is recommending a finding that
this provision is not applicable as no
balloon test was done or required
for the project.
A balloon test was not required as
N/A N/A
DRAFT
OC Board of Adjustment – 11/9/15 Page 22 of 66
superimposed upon them showing
what the proposed tower will look
like.
the application did not proposed a
‘new wireless support structure’ as
detailed in Section 5.8.10 (B) (2) of
the UDO.
The Special Use Permit application
shall include a statement that the
facility and its equipment will
comply with all federal, state and
local emission requirements.
5.8.10 (B)
(3) (l)
Original Special Use Permit
Application file and recorded Special
Use Permit allowing for the erection
of the approved tower. This
information can be found on page(s)
200 through 240 of the
supplemental information supplied
to the Board.
The Structural Analysis contained
on pages 241 through 341 provide
proof that the tower is sound and
equipment is consistent with
applicable local, State, and Federal
regulations.
This is also a requirement of the
Orange County Unified
Development Ordinance (UDO) in
order for the tower to remain in use.
Yes Yes
Environmental Assessment
Analysis and a Visual addendum.
5.8.10 (B)
(3) (m)
Staff is recommending a finding that
this provision is not applicable as
the project does not involve the
erection of a telecommunication
tower requiring the submittal of a
visual addendum or analysis.
As previously indicated herein the
proposed will not generate sufficient
land disturbance to require an
Environmental Assessment per the
requirements of the UDO.
This section indicates an
Environmental Assessment Analysis
and Visual Addendum ‘may’ be
required. It is not mandatory.
As the project does not alter the
existing telecommunication facility
staff did not require compliance with
this provision of the UDO.
N/A N/A
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1
REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
STANDARDS for Telecommunication Facilities (continued)
Visual Impact Assessment
requirements
5.8.10 (B)
(3) (n)
Staff is recommending a finding that
this provision is not applicable as
the project does not involve the
erection of a telecommunication
tower requiring the submittal of a
visual addendum or analysis.
No visual impact assessment was
required.
N/A N/A
Demonstration that the wireless
support structure is sited so as to
have the least visually intrusive
effect reasonably possible and
have the least adverse visual effect
on the environment and its
character, on existing vegetation,
and on the residences in the area
of the telecommunications tower.
5.8.10 (B)
(3) (o)
Original Special Use Permit
Application file and recorded Special
Use Permit allowing for the erection
of the approved tower. This
information can be found on page(s)
200 through 240 of the
supplemental information supplied
to the Board.
Also the Vicinity Map (Attachment
1), the application for modification
(Attachment 2), the submitted site
plan, and staff’s abstract support
this conclusion.
Yes Yes
A statement, prepared by a
professional engineer licensed in
the State of North Carolina
certifying the tower's compliance
with applicable standards as set
forth in the State of North Carolina
Building Code, and any associated
regulations.
5.8.10 (B)
(3) (p)
The structural analysis reports
contained on pages 241-341 of the
supplemental packet of information
supplied to the Board provides
evidence the tower is structural
sound and that same complies with
applicable State building code.
Yes Yes
Proposed telecommunications
equipment planned cannot be
accommodated on an existing
wireless support structures
5.10.8 (B)
(4) (a)
Original Special Use Permit
Application file and recorded Special
Use Permit allowing for the erection
of the approved tower. This
information can be found on page(s)
200 through 240 of the
supplemental information supplied
to the Board. This provides
documentation that the tower was
necessary, which is why the permit
was approved.
Staff would like to remind the Board
the project does not involve the
erection of a telecommunication
tower requiring an assessment of
Yes Yes
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OC Board of Adjustment – 11/9/15 Page 24 of 66
proposed telecommunication
equipment could be supported on
an existing wireless support
structure.
Location of Wireless Support
Structures
5.10.8 (B)
(4) (b)
Original Special Use Permit
Application file and recorded Special
Use Permit allowing for the erection
of the approved tower. This
information can be found on page(s)
200 through 240 of the
supplemental information supplied
to the Board.
This provides documentation that
the tower complied with applicable
locational criteria.
Yes Yes
Fall zone setbacks of 110% of
tower height (not including lighting
rod)
5.10.8 (B)
(4) (c)
Original Special Use Permit
Application file and recorded Special
Use Permit allowing for the erection
of the approved tower. This
information can be found on page(s)
200 through 240 of the
supplemental information supplied
to the Board.
The current submitted scaled site
plan demonstrates compliance with
fall zone requirements.
Yes Yes
Access
5.10.8 (B)
(4) (d)
Site plan. Access shall not be off of
Old Oak Place (SR 2268)
The reason for the modification is
that the original, approved, Special
Use Permit and site plan denoted
access of off Landau Drive.
As the access driveway is being
changed this modifies the previously
approved site plan requiring your
review and approval.
Yes Yes
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1
REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
STANDARDS for Telecommunication Facilities (continued)
Landscape and Buffers – Type C
land use buffer
5.10.8 (B)
(4) (e)
Application (Attachment 2) ; Site
Plan ; Vicinity Map (Attachment 1).
Existing vegetation around the tower
is not being impacted thereby
invalidating the County’s previous
approval.
Sheet C-1A of the site plan denotes
the planting of additional vegetation
around the driveway and tower
compound in an effort to augment
existing vegetation.
Yes Yes
Visibility of balloon shall not
constitute sole justification of denial
but shall serve as an indication of
what location on the site may be
less visually intrusive.
5.10.8 (B)
(4) (f)
Staff is recommending a finding that
this provision is not applicable as no
balloon test was done for this
project as the request did not
involve any alteration (i.e. increasing
height) of the existing, approved,
tower.
N/A N/A
The applicant shall demonstrate
and provide a description in writing
and by drawing how it shall
effectively screen from view the
base and all related equipment and
structures of the proposed facility.
5.10.8 (B)
(4) (g)
Application (Attachment 2) ; Site
Plan ; Vicinity Map (Attachment 1).
Existing vegetation around the tower
is not being impacted thereby
invalidating the County’s previous
approval.
Sheet C-1A of the site plan denotes
the planting of additional vegetation
around the driveway and tower
compound in an effort to augment
existing vegetation.
Yes Yes
The site plan shall indicate a
location for at least two equipment
buildings in addition to that
proposed for use by the applicant.
5.10.8 (B)
(4) (h)
Original Special Use Permit
Application file and recorded Special
Use Permit allowing for the erection
of the approved tower. This
information can be found on page(s)
200 through 240 of the
supplemental information supplied
to the Board.
The current submitted scaled site
plan demonstrates compliance with
this standard as well by showing
existing equipment buildings.
Yes Yes
5.10.8 (B) Staff is recommending a finding that N/A Yes
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OC Board of Adjustment – 11/9/15 Page 26 of 66
All utilities at a facility site shall be
installed underground and in
compliance with all Laws,
ordinances, rules and regulations of
the County where appropriate.
(4) (i)
this provision is not applicable as
there are no utilities being proposed
with this proposal.
The re-location of the driveway will
not impact existing utilities.
All wireless support structures shall
satisfy all applicable public safety,
land use, or zoning issues required
in this Ordinance.
5.10.8 (B)
(4) (j)
Application (Attachment 2) and Staff
testimony.
The project, specifically the re-
location of the driveway, will not
impact the existing wireless support
structure from a public safety, land
use, or zoning standpoint.
Re-location of the driveway will not
increase traffic on existing State
maintain roadways as to create a
public safety hazard.
Re-location of the driveway will
allow for the continued operation of
the facility as identified by the
applicant.
Yes Yes
Fences and Walls
5.10.8 (B)
(4) (k)
Application (Attachment 2) ; Site
Plan.
The site plan denotes the location of
proposed fences and walls for the
existing telecommunication
compound as well as the access
road.
Yes Yes
Tower is structurally designed to
support additional users.
5.10.8 (B)
(4) (l)
1. Original Special Use Permit
Application file,
2. A Structural Analysis report
completed by B ant T
Engineering, sealed by Chad
Tuttle, describing the tower’s
capacity and structural
integrity as well as
compliance with applicable
State building code dated
August 9, 2010, and
3. A Structural Analysis Report
completed by FDH
Engineering Inc., sealed by
Christopher Ply, describing
the tower’s capacity and
structural integrity as well as
compliance with applicable
State building code dated
April 30, 2014.
Yes Yes
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This information demonstrates there
are multiple uses on the existing
tower proving it was structurally
designed to support additional
users.
To minimize the number of antenna
arrays the County may require the
use of dual mode antennas.
5.10.8 (B)
(4) (m)
Staff is recommending a finding that
this provision is not applicable as
the re-location of the driveway will
not impact the placement of
antenna(s) or address the need for
the use of dual mode antenna(s).
N/A N/A
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REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
STANDARDS for Telecommunication Facilities (continued)
Structures shall be galvanized
and/or painted with a rust-
preventive paint of an appropriate
color to harmonize with the
surroundings.
5.10.8 (B)
(4) (n)
Original Special Use Permit
Application file and recorded Special
Use Permit allowing for the erection
of the approved tower. This
information can be found on page(s)
200 through 240 of the
supplemental information supplied
to the Board.
Information is contained within these
documents indicating the tower is in
harmony with the surrounding area.
Yes Yes
Both the wireless
telecommunications support
structure and any and all accessory
or associated telecommunication
equipment and related facilities
shall maximize the use of building
materials, colors and textures
designed to blend with the structure
to which it may be affixed and/or to
harmonize with the natural
surroundings, this shall include the
utilization of stealth technology as
may be required by the County.
5.10.8 (B)
(4) (o)
As depicted on the submitted site
plan existing vegetation around the
tower is not being impacted by the
project.
Sheet C-1A of the site plan also
denotes the planting of additional
vegetation around the driveway and
tower compound in an effort to
augment existing vegetation.
Original Special Use Permit
Application file and recorded Special
Use Permit allowing for the erection
of the approved tower contains
information that the tower will be in
harmony with the natural
surroundings. This information can
be found on page(s) 200 through
240 of the supplemental information
supplied to the Board.
Yes Yes
Antennas shall be flush mounted
5.10.8 (B)
(4) (p)
1. Original Special Use Permit
Application file,
2. A Structural Analysis report
completed by B ant T
Engineering, sealed by Chad
Tuttle, describing the tower’s
capacity and structural
integrity as well as
compliance with applicable
State building code dated
August 9, 2010, and
3. A Structural Analysis Report
completed by FDH
Engineering Inc., sealed by
Christopher Ply, describing
the tower’s capacity and
Yes Yes
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structural integrity as well as
compliance with applicable
State building code dated
April 30, 2014.
As noted in these documents
antenna are flush mounted to the
tower.
Lighting
5.10.8 (B)
(4) (q)
Staff is recommending a finding that
this provision is not applicable as
the request to re-locate the existing
driveway does not alter the existing
tower in any manner as to require
lighting to be provided.
The submitted site plan does not
propose the erection of street lights
along the driveway either.
Lighting of the tower is only required
if same is over 200 ft. in height in
order to comply with FAA and FCC
requirements. This tower, according
to the recorded Special Use Permit
is only 160 ft. in height.
N/A N/A
The tower and antenna will not
result in a significant adverse
impact on the view of or from any
historic site, scenic road, or major
view corridor.
5.10.8 (B)
(4) (r)
Application (Attachment 2) ; Site
Plan, and Property Vicinity Map
(Attachment 1)
Staff will also refer to the original
Special Use Permit application file
contained within the supplemental
information packet on page(s) 205
through 240.
Yes Yes
Facilities, including antennas,
towers and other supporting
structures, shall be made
inaccessible to individuals and
constructed or shielded in such a
manner that they cannot be
climbed or collided with
5.10.8 (B)
(4) (s)
Application (Attachment 2) ; Site
Plan ; Vicinity Map (Attachment 1).
Existing vegetation around the tower
is not being impacted thereby
invalidating the County’s previous
approval.
Sheet C-1A of the site plan denotes
the planting of additional vegetation
around the driveway and tower
compound in an effort to augment
existing vegetation.
A fence and gate shall be erected
as denoted on Sheet C-3 of the site
Yes Yes
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plan limiting vehicular access to the
site.
There is an existing fence around
the base of the previously approved
telecommunication tower preventing
access.
Abandoned structures shall be
removed with 12 months.
5.10.8 (B)
(4) (t)
Staff is recommending this become
a condition of approval
Yes Yes
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REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
STANDARDS for Telecommunication Facilities (continued)
A determination shall be made that
the facility and its equipment will
comply with all federal, state and
local emission requirements, and
the Special Use Permit shall
include a statement that the facility
and its equipment will comply with
all federal, state and local emission
requirements.
5.10.8 (B)
(4) (u)
1. A Structural Analysis report
completed by B ant T
Engineering, sealed by Chad
Tuttle, describing the tower’s
capacity and structural
integrity as well as
compliance with applicable
State building code dated
August 9, 2010, and
2. A Structural Analysis Report
completed by FDH
Engineering Inc., sealed by
Christopher Ply, describing
the tower’s capacity and
structural integrity as well as
compliance with applicable
State building code dated
April 30, 2014.
Modification of the permit to re-
locate the driveway will not alter or
invalidate continued compliance
with federal, state, or local emission
standards.
Yes Yes
The Special Use Permit shall
include a condition that the electro-
magnetic radiation levels maintain
compliance with requirements of
the FCC, regarding emission of
electromagnetic radiation.
5.10.8 (B)
(4) (v)
Staff recommends imposition of the
condition.
As this proposal does not involve a
co-location or modification of
existing antenna there is no
requirement for documentation
proving same at this time.
Yes Yes
Warning signage on compound
fence
5.10.8 (B)
(4) (w)
Staff has verified through a site visit
there is existing warning signage on
the actual compound fence in
compliance with this requirement.
Yes Yes
Bond Security. Applicant/owner
shall file a bond with the County to
assure faithful performance of
terms and conditions of Special
Use Permit.
5.10.8 (B)
(5)
Staff is recommending a finding that
this provision is not applicable.
The relocation of the driveway will
not alter existing bonds we have on
file with respect to the operation of
the existing tower.
N/A Yes
Liability Insurance
5.10.8 (B)
(6)
Applicant testimony.
Yes Yes
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REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA
SPECIFIC STANDARDS
In accordance with Section 5.3.2 (A) (2), the Board of Adjustment shall also consider the following general
conditions before the application for a Special Use can be approved.
NOTE: Planning Staff does not provide a recommendation on these items as the Board is expected to act
based on the sworn testimony provided at the hearing. Staff is providing a brief synopsis of the information
contained within the submittal the applicant argues demonstrates compliance for reference purposes only.
The use (will / will not) maintain or
promote the public health, safety and
general welfare, if located where
proposed and developed and
operated according to the plan as
submitted.
Section 5.3.2
(A) (2) (a)
Application package inclusive
(Attachment 2)
N/A Will
The use (will / will not) maintain or
enhance the value of contiguous
property (unless the use is a public
necessity, in which case the use
need not maintain or enhance the
value of contiguous property).
Section 5.3.2
(A) (2) (b)
Application package inclusive
(Attachment2) and site plan.
N/A
Will
The location and character of the
use, if developed according to the
plan submitted, (will / will not) be in
harmony with the area in which it is
to be located and the use is in
compliance with the plan for the
physical development of the County
as embodied in these regulations or
in the Comprehensive Plan, or
portion thereof, adopted by the Board
of County Commissioners.
Section 5.3.2
(A) (2) (c)
Application package inclusive
(Attachment 2) ; staff testimony and
abstract ; site plan
N/A Will
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