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HomeMy WebLinkAboutBOA minutes 060815 OC Board of Adjustment – 6/8/2015 Page 1 of 68 MINUTES 1 BOARD OF ADJUSTMENT 2 JUNE 8, 2015 3 REGULAR MEETING 4 5 MEMBERS PRESENT: Larry Wright, Full Member (Chair) 6 David Blankfard, Full Member (Vice Chair) 7 Karen Barrows, Full Member 8 Samantha Cabe, Alternate Member 9 Mark Micol, Alternate Member 10 Jeffrey Schmitt, Full Member 11 12 STAFF PRESENT: Michael Harvey, Current Planning Supervisor 13 Patrick Mallett, Planner II 14 Debra Graham, Board Secretary 15 James Bryan, Staff Attorney 16 17 AGENDA ITEM 1: CALL TO ORDER 18 19 Larry Wright called the meeting to order. 20 21 Larry Wright: Annually, the BOCC Chair and Vice Chair meet with chairs of Advisory Boards and committees and the 22 purpose of that annual meeting is to gather the chairs of all the advisory boards and ask them to talk about their 23 coalition they have with other boards to give a sense of balance and harmony in moving the county ahead. This is one 24 aspect the county strives to touch base with the grass roots. They held one in March for advisor y boards. The nature 25 of this board is really not advisory. Donna Baker asked Michael Harvey to represent this board. Mr. Harvey did 26 represent this board and I would like to thank him for doing so. 27 28 Larry Wright: A few days ago I learned Debra Graham will retire on July 31st from 30 years of Orange County Public 29 Service. I am at a loss to find some superlatives to convey Ms. Graham’s excellent dedication and service. I wish her 30 the upmost joy as she settles into her new life. 31 32 Larry Wright: I would like to open the floor for nominations for chair. 33 34 Jeff Schmitt: I would like to nominate Samantha Cabe. 35 Mark Micol: Seconded. 36 37 Larry Wright: Unfortunately, she is an alternate member. 38 39 Michael Harvey: That is about to be corrected. The board is about to move her to a full member. 40 41 Larry Wright: Other nominations? 42 43 MOTION made by Jeff Schmitt to nominate Samantha Cabe. Seconded by Mark Micol. 44 Vote: Unanimous 45 46 OC Board of Adjustment – 6/8/2015 Page 2 of 68 Mark Micol: Nominated David Blankfard for Vice Chair. 1 2 Larry Wright: Any other nominations? 3 4 Jeff Schmitt: Move to close the nominations. 5 6 MOTION made by Mark Micol to nominate David Blankfard as Vice Chair. 7 Vote: Unanimous 8 9 Larry Wright: As a point of order, what do we do for Clerk o r Secretary? 10 11 Michael Harvey: My honest answer is that will be addressed at the appropriate time when either the county hires the 12 new senior admin person or the staff will have to be appointed as clerk at a future meeting. 13 14 15 AGENDA ITEM 2: CONSIDERATION OF ADDITIONS TO AGENDA 16 There were no additions to the agenda. 17 18 Karen Barrows: We talked after the shooting range thing about making a motion to the BOCC about the noise 19 ordinance or defining shooting ranges… we didn’t want to lose track of that. Do we want to do that tonight? 20 21 Michael Harvey: The county planning staff has already received approval by the BOCC to initiate an ordinance text 22 amendment dealing with recreational facilities so we believe we accomplished what the board has asked. 23 24 25 AGENDA ITEM 3: APPROVAL OF MINUTES 26 A. DECEMBER 8, 2014 27 28 Mark Micol: On page 14, line 19 should read, “And the activity…” 29 30 David Blankfard: On page 34, line 8 should read, “He is not here”. Line 10 should read, “He is not here exactly”. On 31 page 51, should line 21 and 22 be stricken since the female was unidentified? 32 33 James Bryan: I don’t believe the board based its conclusion on that evidence so I would keep it part of the record. 34 35 MOTION: Karen Barrows made a motion to approve the minutes with corrections. Seconded by Jeff Schmitt. 36 VOTE: Unanimous 37 38 OC Board of Adjustment – 6/8/2015 Page 3 of 68 1 AGENDA ITEM 4: PUBLIC CHARGE 2 3 The Board of Adjustment pledges to the citizens of Orange County its respect. The Board asks its citizens to 4 conduct themselves in a respectful, courteous manner, both with the Board and with fellow citizens. At any time 5 should any member of the Board or any citizen fail to observe this public charge, the Chair will ask the offending 6 person to leave the meeting until that individual regains personal control. Should decorum fail to be restored, the 7 Chair will recess the meeting until such time that a genuine commitment to this public charge is observed. All 8 electronic devices such as cell phones, pagers, and computers should please be turned off or set to 9 silent/vibrate. 10 11 The Board of Adjustment is a quasi-judicial administrative body established in accordance with the provisions of 12 local regulations and State law to perform specified functions essential to the County’s planning program. 13 Action(s) taken by the board are based solely on competent, subst antial, and material evidence presented during 14 a previously scheduled and advertised public hearing on a specific item. As detailed within Section 2.12.2 of the 15 UDO the Board chair reserves the right to exclude evidence and testimony that is deemed: ‘inco mpetent, 16 irrelevant, immaterial, or unduly repetitious’ and therefore fails to reasonably address the issues before the Board 17 of Adjustment. While it should be noted there is no time limit on the presentation of evidence, the Chair asks that 18 the presentation of evidence be consistent with established policies, rules of procedure, and acceptable levels of 19 decorum to ensure a fair and equitable hearing for all parties. 20 21 Larry Wright: I have just been presented with a point of order and that is we are going to have to….we have two 22 alternates here tonight and we are going to have to determine which one is part of the quorum. 23 24 Mark Micol: Samantha will be voting. 25 26 AGENDA ITEM 5: A-1-15 – Class B Special Use Permit application proposing to erect a telecommunication 27 facility at 5022 Kerley Road 28 In accordance with Section(s) 2.7 Special Uses, 5.2.2 Table of Permitted Uses, 5.3.2 Application of Use Standards – 29 Special Uses, and 5.10 Standards for Telecommunication Facilities of the UDO Skyway Towers LLC and T-Mobile have 30 submitted a Class B Special Use Permit application seeking a permit to erect a 129 ft. tall (125 ft. tall tower with a 4 ft. 31 lighting pole at the top for a combined total height of 129 ft.) monopole telecommunication facility (i.e. a 32 telecommunication tower) on a parcel of property located at 5022 Kerley Road, further identified utilizing Orange 33 County Parcel Identification Number (PIN) 0801-15-4533. The parcel, owned by Leah Bergman, is zoned Rural Buffer 34 (RB), is approximately 5.8 acres in area, and is located at the intersection of Mt. Sinai Road (SR 1718) and Kerley 35 Road (SR 1717) near the border with Durham County (hereafter ‘the property’). As detailed within the application, the 36 applicant wishes to erect a telecommunication tower within a 100 foot by 100 foot leased area on the aforementioned 37 parcel. There will be an equipment cabinet at the base of the tower to house equipment for the various communication 38 providers utilizing the tower within a 60 foot by 60 foot fenced compound. A ccess to the facility shall be through a 39 proposed 20 ft. wide access drive off of Mt. Sinai Road. 40 41 Michael Harvey: As this is a quasi-judicial hearing, all parties intending to offer evidence or sworn testimony need to 42 come up front to be sworn. Attorneys representing applicants do not have to be sworn in. 43 44 45 OC Board of Adjustment – 6/8/2015 Page 4 of 68 Secretary Debra Graham swore in the following individuals: 1 Thomas H. Johnson, Jr. David Smith Graham Herring Robert (Bob) Hill Lee Kerlin Robert Hornik Brack Hall Ann Hall Sue Wilkins Jeffrey Fisher Faye Olive Mark Waller Jon Blitz Beth Bega James M. Gibson Vicki Gibson Lois Madden David J. Madden Nancy Willson Susan Sachs Judy Martell Susan E. Suttons Rick Bartram Judson Edeburn Mary Edeburn Lyn Gould D. Kulousel Michael Nicosia Elizabeth Rusnak Pam Waller Cristen PennindocPeir Madison Dietz Michelle Dietz Margie Dietz David Pierce Cristina Pierce Carolina Diett Joanie Yeargan Megan Moore Judith Bishop Randy Bishop Yesica Poou Martinez Carrick Goldner Richard Goldner Tristran Ottwason Nicole Chemla Susan Schneider C. Randolph Bishop Judith Snyderman Lucas Moore Judith E. Dearlove Joan G. Peck Janet N. Ray Harriet Sayre McCord William Ray Jane Norton Luis Gulley Katy Phillips Scott Walden Daniel T. Gauss Patricia C. Smith Elia E. Villanueva Ben Philpot Jamie Barnhill Joy Martin Denise Olson 2 Michael Harvey: My name is Michael Harvey with the Current Planning Department for Orange County. I have been 3 sworn. I am going to briefly summarize the memorandum I have prepared for you and allow the applicant to present his 4 case. As has already been indicated, we are here to review a Class B Special Use Permit proposing the development 5 of a telecommunications facility at 5022 Kerley Road. In your packet, you have attachments. Most notably, on page 6 60, you have a Property Vicinity Map, on page 61 through 109; you have notification materials and certifications that 7 include balloon tests as well as the public hearing. Beginning on page 110, you have the Special Use Permit Findings 8 of Fact completed by staff. You will note there are a couple of places that staff did not make a determination. We will 9 get to that in a moment. Attachment 4 beginning on page 127, you have staff comments. You have an application 10 packet delivered by the applicant with a May 29 letter responding to some of the staff’s comments. You also have a 11 letter offered by Carolina Telecommunications Services, LLC, our telecommunications consultant, Jackie Hicks. You 12 have an email written by Mr. Patrick Young, a planner for the City of the Durham. The City of Durham reviewed the 13 telecommunication application as a courtesy. In this email, they have no comments on the proposal. You have a 14 notarized statement from me indicating the posting of the signs for the balloon test. Mr. Chairman, at this time, I would 15 like to enter the Abstract which includes Attachments 1, 2, 3, 4, the application package including an 11x17 and full 16 color copy of the site plan, the Carolina Telecommunications consultant’s recommendation, the email from the City of 17 Durham, my certification of signed posting as well as copies of the Unified Development Ordinance, the 2030 Adopted 18 Comprehensive Plan, into the record. 19 20 MOTION made by Jeff Schmitt to accept. David Blankfard seconded. 21 VOTE: Unanimous 22 23 Michael Harvey: I will summarize the information on pages 52 through 59 . You have a proposal to build a 129 foot tall 24 monopole as a 125 foot cell tower with a four foot lightning rod at 5022 Kerley Road with an Orange County parcel 25 identification number of 0801154353. This is the map showing the property and the anticipated location of the tower. 26 That is there for illustrative purposes only. It does not represent the actual location of the proposed tower. The 27 applicant is proposing as summarized on page 54 will be to erect a cell tower within 100 by 100 foot leased area o f this 28 parcel with a __________ of the tower and a 60 by 60 foot compound with access to the facility proposed from Mt. Sinai 29 Road. We have provided a brief breakdown of comments relating to this tower application we have received. 30 31 OC Board of Adjustment – 6/8/2015 Page 5 of 68 I would like to call you attention to page 54 and 55, we have staff and neighborhood comments arising out of the 1 balloon test and the neighborhood information meeting that was conducted at the same time. The concerns staff heard 2 was that the tower would be visually intrusive to the area, it would have a negative impact on adjacent property values, 3 and several property owners expressed concern that it was unnecessary development. Several local residents 4 expressed concern of electromagnetic radiation being generated from the t owers. A general feeling that the tower was 5 just unwarranted in this particular area of the county. The applicant, who was at the neighborhood meeting, will 6 respond with their responses to these various concerns. I will remind the board that this is a quasi-judicial decision; 7 your decisions will be made from the sworn testimony and competent material evidence into the record. 8 9 Larry Wright: I have a couple of questions. On page 54, in the first paragraph, it states, “permit to erect 129 foot tall 10 tower with a four foot lighting pole”. That is not a pole with a light but a lightning rod? 11 12 Michael Harvey: As we also pointed out in this abstract, measurement for required setbacks is from 120 foot monopole 13 not the lightning rod. 14 15 Samantha Cabe: We will have the ability to ask you questions? 16 17 Michael Harvey: Most certainly. The only time in this hearing you don’t get to ask questions is when you close the 18 public hearing. 19 20 Larry Wright: Item 3 on page 56, the plan to be submitted in harmony with the area in which it is to be located and the 21 use is in compliance with it. Could you define that? 22 23 Michael Harvey: If you are quoting Section 5.32. (a) 2 which are the general standards that all Spe cial Use Permits 24 must adhere to, these are the standards that the staff does not make recommendations on as they come based on 25 evidence and sworn testimony provided at the hearing and they are specifically that the use will maintain or promote the 26 public health safety or general welfare. The use will maintain or enhance the value of contiguous property and the 27 location, character, use if developed according to the plan submitted will be in harmony in which it is to be located and 28 the use is in compliance with the plan for the physical development of the county involved in these regulations. What 29 you will have to ascertain is that the tower, as proposed, will not be out of character with the area, is consistent with the 30 overall growth and development plan of the county, it’s in harmony with the area in terms of it not being visually 31 intrusive. I will remind the board that the telecommunication facilities are permitted in every residential zoning district of 32 the county subject to higher criteria established in Section 5.8 of the UDO and on the issuance of the SU P, either Class 33 A or Class B depending on the height. 34 35 Samantha Cabe: In Section 5.10.8 (b) specifically subsections 4(b) 4 that you had referenced in your notes on page 36 55; I believe this particular proposed tower is within the half mile of an existing m onopole, is that correct? 37 38 Michael Harvey: Correct. 39 40 Samantha Cabe: In the UDO, do we have a definition of what “adequate coverage” means? Whether the coverage by 41 locating the service on an existing wireless telecommunication support structure is adequate? 42 43 Michael Harvey: There is no technical definition in the Ordinance. Part of the reason is because state law no longer 44 permits us to require evidence on business decisions. As you recall, maybe four years ago, section 5.10(a) was much 45 more extensive and expansive. 46 47 Samantha Cabe: Is the adequate qualifier in that paragraph, adequate to meet the business decision or adequate to 48 meet the county Comprehensive Plan and purposes we have defined in the UDO? 49 50 OC Board of Adjustment – 6/8/2015 Page 6 of 68 Michael Harvey: I would look at it from the sta ndpoint that you allowed to locate towers as defined in the UDO within 1 one half mile of each other if the existing tower cannot address your needs or if you would have to, for example, you 2 would have to elevate a tower to accommodate your need. While I know I am giving general answers, part of that is 3 because it’s part of the applicant’s testimony as to why this particular facility won’t meet his need. 4 5 Larry Wright: On page 56, 7D, “Objective PS-T-7, “preferred” as to whose preference? 6 7 Michael Harvey: As you know the county has adopted a Master Telecommunication s Plan identifying approximately 14 8 sites that the BOCC has identified properties that were a primary choice for the location of a telecommuting facility. 9 There is no property in these areas that is a preferred choice. 10 11 Larry Wright: So this happens to be the preferred location of Orange County? 12 13 Michael Harvey: I wouldn’t say that, I would say there is no preferred property that has been identified in the Master 14 Telecommunications Plan that serves the applicant’s needs, therefore, he is coming to petition this board for a SUP to 15 erect a tower on this property and it is his belief that he has sufficient documentation and evidence proving that the 16 issuance permitting this property is consistent with the UDO. 17 18 Jeff Schmitt: In several pieces of correspondences, you have indicated some initial deficiencies in filing the applicant 19 and then in a letter on May 15, the fourth paragraph you say, “Previous correspondence, specifically a letter dated 20 March 30 identified deficiencies for the most part, these have been corrected”. So the p ackage we have in front of us is 21 complete in all of the various technical requirements that the county needs to approve this? 22 23 Michael Harvey: In Attachment 4, on March 30, we rejected the application outright identifying several deficiencies. 24 The applicant submitted a revised copy of the application. With that offer, a letter on May 15, on page 137, indicating 25 that while the applicant had met the submittal requirement, we believed there were issues that needed additional 26 clarification. We have identified those herein. In your packet you have a letter dated May 29, from Mr. Thomas 27 Johnson, the attorney for the applicant where he responds to our correspondence. 28 29 Tom Johnson: Attorney with the law firm of Nexsen Pruet in Raleigh and I represent Skyway Towers and T-Mobile in 30 connection with this application for a special use permit for a tower on Kerley Road. I appreciate your time tonight and I 31 would like to thank your staff and Michael. The entire staff has been good to work with. There were challenges earlier 32 on with this site. We had to do a balloon test under your ordinance. We attempted to do that at an earlier time but the 33 weather would not cooperate. If it is too windy, it won’t set up like it’s supposed to and it didn’t but Michael was nice 34 enough that he went out there to meet with any members of the public that were there. The neighborhood meeting was 35 in conjunction with the balloon. We then rescheduled t he balloon test and had a balloon test at another community 36 meeting in conjunction with that balloon testing, got it successfully completed and it is part of your package you have 37 with those pictures and I will go over those in a moment. So we did go thro ugh that process and in this case ended up 38 having two community meetings so we have met more than would ordinarily occur because of the way it came out in 39 terms of not being able to do the balloon test. A question earlier that was asked on page 124 of your record, it does say 40 that staff has concluded that we comply with the standards that are set forth in the ordinance so that clearly states that 41 we have worked out, we have worked through the earlier issues and gotten the information together to the point that 42 staff agrees that we meet the standards that are set forth in the UDO. Obviously that decision making in the final 43 issuance of the SUP is up to you as a board and you make that determination based upon what the staff has 44 recommended. As part of that process and not to confuse matters and to help a little bit of the understanding, I know 45 Ms. Cabe asked some questions regarding looking at an alternative location and what that means. The way the law 46 exists now in North Carolina, there are two standards, not really two standards but you have your state law, Wireless 47 Communications Act that has very specific requirements within it and you have your local UDO. Those aren’t always in 48 harmony with each other but the way we operate in North Carolina, the state law controls to a degree the local law, it is 49 in conflict, there is a priority in terms of state law first and the local ordinance second. I have a copy of the state law; 50 OC Board of Adjustment – 6/8/2015 Page 7 of 68 there is a Wireless Telecommunications Act for both counties and cities. I would like to pass it out to you so you have 1 that because it does add clarification that is not in the local UDO. 2 3 Larry Wright: Do I have a motion to enter this into the record? 4 5 MOTION made by Jeff Schmitt to enter (applicant Exhibit #1) into the record. Seconded by David Blankfard. 6 VOTE: Unanimous 7 8 Tom Johnson: I would like to talk about some of the standards and some of the things that are mentioned within this 9 act. If you look, once you get your copy, I will start with 153A -349.51A and it basically outlines what is within the 10 purview of the local board in making a decision on an application for a tower. It says a county may plan for and 11 regulate the sizing and modification of wireless support structures and wireless facilities in accordance with land 12 development regulations and in conformity with this part and accept as expressly stated within the state statutes, 13 nothing in this part shall eliminate the county for regulating applications to construct, modify or maintain wireless 14 support structures. The definition of a wireless support structure is contained in this statute to the tower. It specifically 15 says it is a tower whether it is a monopole or lattice or to construct, maintain, modify or co-locate wireless facilities on a 16 wireless support structure that is on existing structure. Based on consideration, land use, public saf ety and zoning 17 consideration; those include aesthetics, landscaping, structural design, setbacks, fall zone or state and local building 18 code requirements consisting with provisions of federal law and this referred to here. Again, it is the typical zoning 19 decisions that is yours to consider as a board, aesthetics, setback, and those kinds of things you are used to 20 considering. The part of this that helps clarify this more is when you get into 153A -349.51A is a little more detail. It 21 says, “Information regarding the applicant’s business decisions such as its design service, customer demand service, 22 the quality of its service to or from a particular area, the specific need for the wireless support structure. Those are 23 considerations that are business decisions of the applicant. The best comparison I can come up with is the franchise of 24 McDonald’s decided to build a McDonald’s on a corner in Hillsborough, the decision about whether or not there is a 25 need for another McDonald’s in Hillsborough in not part of your decision but the setbacks, aesthetics, things like that 26 which deal with McDonald’s is within the zoning purview of the county. That is the first clarification in the state statute 27 brings to the picture. The other clarification is you get into Subsection C of 153A -349.52 is case point somewhat that 28 there can be no existing or previously approved wireless support structure that can accommodate the need. The 29 second part of that is necessary to provide the applicants design service. In other words, that co-location cannot 30 function to provide the support the applicants design service. Y ou can require the county, the applicants to evaluate the 31 reasonable feasibility of co-locating new antennas and equipment on existing wireless support structure within the 32 applicants search ring. When I say search ring, it is in your packet and it is the area in which the carrier, let’s say T-33 Mobile has decided we need a tower in this area in order to be able to match up with other existing towers to improve 34 our service. That is what the service ring is. It is roughly a one half mile radius search ring for this location in order to 35 be able to match up with the existing towers so what the carrier does is have that search ring they give to a real estate 36 consultant who goes out and finds properties within that search ring that may or may not meet the requir ements of T-37 Mobile in this area and comes up with options for T -Mobile to look at and that all depends upon not only location but 38 also a willing land owner. Is there someone out there who is willing to lease a site for a tower? But they also look at 39 the existing towers. The key point in the state statue is co-location on an existing wireless support structure is not 40 reasonably feasible if co-location is technically or commercially impractical or the owner of the tower will not allow you 41 to go on the tower for some reason. That is not the case here. Our focus here tonight will be on the technical or 42 commercial impractical and I do have a radio frequency engineer from T-Mobile, Lee Kerlin, who will go into that and 43 explain why there is an existing American Towers site in Durham County on Kerley Road, not far from this one. We 44 fully admit that and you saw that in your packet and the information has been provided but it’s at an elevation that will 45 not meet the objectives that T-Mobile has for this location. Again, the detail will come from the radio frequency 46 engineer. Those are the main points so what you take away here is we have a search ring, we have to look at options 47 within that search ring, that is what state law says and you see whether or not ther e are any opportunities on other 48 wireless support structures. Not utility poles, not other structures, wireless support structures under the same statute 49 OC Board of Adjustment – 6/8/2015 Page 8 of 68 which are towers as defined in the state statute so that is what you are looking at and that is the c omparison. In this 1 instance within the search ring, there was only one other tower in that area and that is the one we will focus on tonight. 2 3 Samantha Cabe: I know this is a relatively new statute that has been in effect less than two years. Has the co urt 4 considered the application of this statute yet, do you know? 5 6 Tom Johnson: I do not know of direct cases taking a look at particular provision of this statute and what it means. 7 There are obviously tower cases. There was one recently in Durham Count y and it came down within the past several 8 months regarding the ________ and what that meant and what was considered to be readily identifiable as a tower but 9 that was the most recent case that I am aware of but some of these other provisions have not because they have really 10 evolved from federal law and they have been around a long time and what happened is there was a move back in 2011 11 to amend the state statute to more closely match federal law which is the Telecommunication Act of 1996. Getting into 12 the ordinance and some of the things I want to break it down and simplify it a little bit. Of course there was discussion 13 earlier about the general standards for Special Use Permits. We will address those provision s and those particular 14 items but there is also specifics for towers, specific requirements for towers that y ’all went into with the state statute and 15 what that means. Again, the first things, the use will maintain or promote public health safety and general welfare if 16 located where proposed and operated, that the use will maintain or enhance the values of contiguous properties. I do 17 have an appraiser who will testify to that effect, Mr. David Smith and the location and character of the use if developed 18 according to plan submitted will be in harmony and in accordance will the Comprehensive Plan and the other plans that 19 are set for in the County Ordinance and within the Comprehensive Plans. A couple of things I want to point out 20 because there have been some discussion and comments from the neighbors about the rural character of this area. 21 Some may want to point that these goals or policies listed on page 56 in the staff report as well as 5.10.1 which is the 22 intent of this ordinance and I think it does provide a good backdrop for getting into specifics. The intent of the ordinance 23 in 5.10.1 speaks to the regulations contained herein are designed to promote for the safe and efficient integration of 24 facilities necessary for the provision of advanced wireless communication services through the community with a goal 25 of establishing reliable, wireless service to the public, governmental agencies and first responders in a manner that 26 provides for the public safety and general welfare of its citizens. That is the guiding light for this ordinance and for why 27 we are here tonight but the other goals listed in number seven on page 56 are very helpful as well. Provision of 28 adequate services and facilities for a high quality of life, efficient and effective public safety including police, fire, 29 telecommunications and emergency services, developing a mechanism for cooperation among t elecommunication 30 providers. Again, that is why I will address the co-location issue with the adjoining tower. And number 7E says the 31 expansion of affordable high speed internet access to rural and underserved areas. Wireless is widely becoming the 32 way we are getting our internet especially in rural areas where you often times may not have Time Warner Cable and 33 others that have cable run to it so that is one of the ways you are getting access to that service and then reliable 34 notification and oversight of emergency assets. This presentation will help you understand where the industry is and 35 why we are here tonight. Number one, consumers are more often than not relying exclusively on wireless devices for 36 their communications. We used to have landline phones; still do have landline phones but the move is away from that 37 and these are some United States and North Carolina figures that show this. There are 32% of the households in the 38 United States that are wireless only. That is they drop their landline phone for economics; they just don’t use it for 39 whatever reason. In North Carolina, that is 33%. Those that are mostly wireless on top of that, another 16% in the 40 United States, 13% in North Carolina is where you may have a landline phone but what do you p ick up to use most of 41 the time and that is the wireless device. Why that becomes important is the challenge here, nationwide 70%, I think is a 42 little less in Orange County by only average 70% of the calls to 911 are from wireless devices so it is importan t to have 43 a signal strength that is strong enough that not only when you are outside you can use your device but when you are 44 inside a commercial building with thicker walls or a home that the signal is strong enough and when you pick up that 45 phone to dial 911 you can dial 911 and get the assistance you need. But this also show some graphs regarding the 46 number of wireless subscriptions, the number in the U.S. population with a wireless device and again the number of 47 wireless only households is growing tremendously since 2000 or 2002. Data traffic has gone up tremendously since 48 2007 and particularly the advent of the introduction of the IPhone when we started using more smart devices to access 49 data and not only do we have our handheld devices, our IPhone, ou r IPad, our tablet and wireless in our laptop 50 OC Board of Adjustment – 6/8/2015 Page 9 of 68 computers, more and more, that is where everything is going. Data traffic is driving the demand to have more so than 1 voice. They need to have more towers in order to have more capability and when you get in a public world’s 4G speed, 2 they need 4G speeds and again, that is what I showed in 2007 when the IPhone was released. By 2016, the estimate 3 will be 1.4 wireless devices for every person in the world. That is because you have got your IPhone and IPad or yo ur 4 computer and you will have more than one. Again, a good number of us use those multiple devices. Demographics 5 affect this; the younger generation is using wireless more and more. It is used for eLearning, eHealth, eCommerce, 6 that is why the goals are in your ordinance and the user expectations have changed. What we used to view as an 7 option has now become a necessity in terms of wireless. This is the result of the Balloon Test and I want to address 8 that in terms of looking at aesthetics. This is a more accurate location of where the tower is supposed to be. You might 9 ask in this location, why did we not go up against the trees that are on the property line here. The reason we can’t is 10 because the ordinance has a required setback of 110% of the tow er height which is what Mr. Harvey mentioned earlier 11 of the 125 foot tower. Therefore in order to meet that we had to move further out into the property in order to be able to 12 do that. This is just a map of the different locations that pictures were take n of the balloon on the Balloon Test and Mr. 13 Graham Herring is here tonight to answer any questions about this. He actually did photo simulations based upon 14 these photographs. When you see NV that means the tower was not visible or the balloon was not vi sible at those 15 locations. This is a view from Location 1 from the south on Kerley Road toward the site. You can see the red balloon 16 there. This is the tower as it would be superimposed for a traditional monopole tower simulated from that location. As 17 you can see perspective does a lot of things. The tower, in this instance, looks closer than the power pole that’s closer 18 to where the photograph was taken. You can see power lines going back and forth at this angle are taller than the 19 tower. In this location, you can barely see the balloon, that is w hy we have the yellow arrow to show where the balloon 20 was and this is further down Kerley Road from the site. This is from the adjoining subdivision. Again, you could barely 21 see it in the trees. That is what the yellow is pointing out where the balloon was. From this location, again, all this was 22 done from public rights of way; we do not have permission to go onto private property so these were all public rights of 23 way in the area. This location in the cul-de-sac, it was non-visible. Again, it was not visible here because of elevation 24 and vegetation. The view from Location 7, this is the intersection from Kerley and Mt. Sinai Road again looking straight 25 at the site. Obviously there are no trees here and it is flatter but look at the other parts you see. What do you see at 26 this intersection; you see massive power lines that pre-exist this tower and the balloon from this perspective is within 27 this power line. It doesn’t look unlike the utility pole holding up those wires but from this location that is the perspective. 28 Again, this is a view from looking back at the site along Mt. Sinai Road a little further down. It is above the power lines; 29 the power lines are still there and this is what it would look like if it were superimposed. 30 31 Samantha Cabe: Can I ask you a question about the previous picture? I know that your picture does not superimpose 32 the fencing and enclosure that will go around; would that be visible from that? 33 34 Tom Johnson: Yes, it would be visible from this location but we have a landscape requirement and basically there is a 35 barn here that you can see that will be removed to get it out of the setback. I think you may have seen that referenced 36 in the materials. This barn is going to be removed and there will be a fence and vegetati on as required by the 37 ordinance, landscape buffer around the base of the tower , that is mainly covering the ground equipment and in this 38 case T-Mobile uses utility cabinets not unlike the power cabinets you see around the right -of-way in various locations. 39 They do not use an actual shelter but some carriers in the future may use a shelter which is like a small utility building. 40 The purpose of the landscaping is predominately to cover that equipment so you can’t see it. This is from around the 41 curve on Mt. Sinai going away from the site. You can barely make out the balloon. This is down Kerley Road, a set of 42 apartments, you can see the balloon in the power lines and this is where the tower superimposed from the apartments 43 and again, from the perspective, the power lines look bigger. This is from the driveway of the Senior Living Home that 44 is across from the site on Mt. Sinai Road at the site. Literally, this is the most direct view that you can see but if you p ut 45 the tower here, again, perspective tells you a lot. This is a light pole from the parking lot at the Senior Living Facility 46 and at this location it looks to be the same height and again you still have power lines showing on the site. This is from 47 the adjoining property owner on the other side of the grove of trees that I spoke to saying, you know we could have 48 moved the tower toward that group of trees but for the setback the tower gets lost in the trees and they not really even 49 in full leaf at this time because of when we took the picture. As you can see the balloon right here from the tower when 50 OC Board of Adjustment – 6/8/2015 Page 10 of 68 it will be shielded by the trees on the property line. I know there has been a lot of discussion and comments made and I 1 want to offer this up front as options and we are willing to accept either one . It is in this board’s prerogative to decide 2 which one but there was the issue about stealthing and hiding the tower. There are two things we are offering to help. 3 One, with the monopole, we can agree to put the antennas in a close mount. There would be about 2 foot arms sticking 4 out from the tower so you wouldn’t be sticking out this far but sticking up against the pole more so. We are willing from 5 an aesthetic point of view to offer that as one option and the other option is like the tower further d own Kerley Road that 6 we are going to address now. We are willing to make this be a pine tree and that has been mentioned by some of the 7 public and comments. We are willing to do that consistent with the other one that exists if the board feels like that is 8 where we need to go in view of the ordinance. Some folks feel the pine tree can be more apparent that is something 9 different. The flush mount antennas are close to the pole and it looks like a single pole and it doesn’t stick out as much. 10 Those are the two options we will put on the table and I’m glad for this board to determine which way they feel like, 11 should they decide to approve it, to go with that. 12 13 Jeff Schmitt: Do you have a picture of this looking like a pine tree? 14 15 Tom Johnson: If I had internet service I can pull one up. It will be similar to the one down the road. This is just a little 16 taller than that. The one down the road is 115 feet; this will be 125 feet so you are adding 10 feet but basically the 17 same as the one down the street. 18 19 Larry Wright: You are talking about the panels that go up on the pole and some would be closer proximity of the pole . 20 We have a telecommunications tower very close to our property and they keep adding. Will you be adding panels on to 21 this over time? 22 23 Tom Johnson: Over time, up and down the pole with other carriers but as a tower owner, which I represent Skyway 24 Towers as well, you can do it as part of the ordinance, you could say they need to be close mount. When I say close 25 mount, they are two foot long arms that would mount to the antennas so it would be closer to the pole. They were 26 required of the ordinance to provide for co -location as well. If you will look at the design in the packet, the tower design 27 that actually came from the tower manufact urer that provides for up to four co-locations. We are willing to stipulate that 28 we use the shorter arms on here because it makes the antennas more blend in with the pole. 29 30 Larry Wright: Do you co-locate on the stealth tower? 31 32 Tom Johnson: What I consider to be stealth is the two things I am offering up. The shorter arms because that moves 33 them in closer to the pole so others can mount on that. Tower design is Tab 9. The Monopine does the same thing. It 34 is considered a stealth and it tries to make it look like a tree to blend in with the surroundings but also uses the limbs to 35 hide the antennas and the reason you would close mount those antennas because we tried to get those within the 36 branches so they would not be readily apparent. As I mentio ned the case in Durham County, Durham County’s 37 Ordinances readily identifiable as a tower and the core case found that a pine was not readily identifiable as a tower but 38 again the standard was that particular language in the Durham County Court. 39 40 Larry Wright: Did you bring this up in your neighborhood meetings? 41 42 Tom Johnson: In terms of offering that, no. I had to get permission from my client but I saw…my client likes to listen to 43 what is happening in the community. The feedback we got from the neighb orhood meeting was pretty strongly. One of 44 the comments was to stealth it more, maybe do a monopine, so I got permission from my client to make that offer to the 45 board based upon those comments from the neighborhood meeting. Again, some like the regular monopole better. 46 What we were getting from the community is from some of the comments, they might like the monopine better which will 47 make it stealthier the closer on the monopine we do so we took that to heart so tonight I am authorized to make that 48 proposal to this board. 49 50 OC Board of Adjustment – 6/8/2015 Page 11 of 68 Karen Barrows: This might be more for Michael. This letter from Jackie Hicks, who is Jackie? 1 2 Michael Harvey: Jackie Hicks is our telecommunications consultant. 3 4 Karen Barrows: Is her concern met with what Tom is telling us? 5 6 Michael Harvey: I would argue that the applicant should finish their presentation and we will get to Ms. Hick’s letter of 7 recommendation or he may want to address it. 8 9 Tom Johnson: The standards mentioned in this letter largely equate to the ordinance regarding stealth and that is why I 10 am offering it up because it addresses the consultant’s primary concerns in terms of ____ from the ordinance. There 11 are other items mentioned in here that is why I went over the state statute earlier . It talks about using other types of 12 facilities such as utility poles, billboards, other things such as that. Number one, those are very short, which won’t meet 13 the objectives but under state law, as I pointed out, the standard under the state statute is whether or not a carrier can 14 co-locate on existing towers. They are called wireless support structures. I point to the definition of a section of the 15 state statute which is 153A-349.51, number 10 is the definition of wireless support structure. This is a new or existing 16 structure such as a monopole, lattice tower or guide tower that is designed to support or capable of supporting wireless 17 facilities so it is just feeding to a tower and it does specifically state that a utility pole is not a wireless support stru cture. 18 Basically, the way the state statute views it is if your tower is available, you have to examine those but if other 19 structures, utilities are not part of that analysis so that is why I disagree with what is in the consultant’s letter but the 20 large part of that is stealth. I have been talking to Ms. Hicks consistently over the entire process. The main concern I 21 was hearing is the stealth of the towers so that is why I decided to come back with these offers because that was the 22 primary things. Again, I am going to have the engineer come up now and speak to the need, why the tower here, the 23 search ring, but also comparing the existing tower and why it will not to work to meet the business design and objective 24 that T-Mobile had. I think this is important for you to know and that is where this gets into, in terms of the coverage. 25 This again is a map that shows the location. Lee if you could come up I would like for you to talk to what these colors 26 mean, what these maps, what these three towers are and if you could ... This is Lee Kerlin; he is an RF Engineer with 27 T-Mobile. He can speak to the colors on this map, what it means and what the objectives of this sign are. 28 29 Lee Kerlin: Good evening, Lee Kerlin, 1421 Bearmore Court, Raleigh, N.C. I have been sworn. I am an RF Engineer 30 with T-Mobile. I am here for your questions. To point out the need for the tower in this location, what we are attempting 31 to do is provide coverage on Mt. Sinai, on Erwin Road and the surrounding neighborhoods and commercial structures 32 in the area. The obvious choice is in this area and that is why the search ring was put here. The candidate that we 33 have identified does meet our needs. If we want to speak about the co -location opportunity of the ATC, it is my opinion 34 that the available height on that does not meet the needs or objectives of the search ring and that is why we are not 35 pursuing that. The difference in height, while only 15 feet on the tower itself, the ATC tower is approximately 50 -60 feet 36 lower in ground elevation so we are actually talking a difference of around 70 feet in actual difference in the center line 37 of the antennas and that is why the propagation is so much different between the two locations. 38 39 Samantha Cabe: Would you say that it is technically impractical to mo unt your devices on the existing American 40 Tower’s tower? 41 42 Lee Kerlin: We certainly could mount antennas and radios at that site. It would not meet our objectives for this search 43 ring and not provide the coverage requirement. 44 45 Samantha Cabe: It is commercially impractical; does it cost too much to mount that there? 46 47 Lee Kerlin: Not commercially impractical in that sense . Commercially impractical in the sense that the location will not 48 provide the coverage we are seeking for our current customers and for future customers. 49 50 OC Board of Adjustment – 6/8/2015 Page 12 of 68 Mark Micol: Can the tower be modified to add an additional 70 feet? 1 2 Lee Kerlin: I doubt that. I couldn’t say, but I doubt that. 3 4 Tom Johnson: As I understand that was a recent tower approved in Durham County and it is just a restrict ion on height 5 because it was a monopine and the height was restricted as part of that process. I do want to show this. It is what is 6 called the propagation map from the site we are proposing. Lee just described what that does for you with the existing 7 site so you can see the coverage here is the RTP and this is the receive signal, code power, this is the pilot channel of 8 the site. What we are receiving on a handset and this is a propagation so this is a tool we use to estimate the 9 coverage. You can see we get a lot of coverage on Mt. Sinai Road out into the county which is what we are looking for. 10 We also make a firm connection back to our existing network towards northeast. We definitely connect towards the 11 south back to 40 and I have good coverage moving into my neighborhoods to the southeast which is also important. 12 13 Jeff Schmitt: My phone does not show me all these numeric things so you could assist me with bars? 14 15 Lee Kerlin: It is difficult to say that would vary by model handset, mapping, eac h handset and/or carrier maps different 16 bar levels to different signal strengths. It is really difficult to say and I wouldn’t want to say something that isn’t true . 17 18 Jeff Schmitt: I guess generally, the palest green is the poorest communication? 19 20 Lee Kerlin: Yes, you would have the lowest level of signal there. We are talking about outdoors there, less likely in 21 building coverage in that situation but possibly in a car and that keep us running down the road. If there is an accident, 22 someone is able to raise the tower from those cover levels. 23 24 Samantha Cabe: I have a question, is north actually the top of the page? 25 26 Lee Kerlin: Yes. That would be true north to the top. 27 28 Tom Johnson: On the next slide, this is the American Tower slide; just describe what you are giving up in terms of that. 29 30 Lee Kerlin: If you can remember the one before, you can see the big difference in coverage out Mt. Sinai Road towards 31 the county. Also, a reduction of coverage of Erwin, my fear is that I would not make a good co nnection to the other site. 32 Part and parcel of cell towers and using the cell phone is mobility and that is the ability to move from one cell to the next 33 cell. A hold between the two sites would be every time you drove down the road, you would drop a cal l there so we are 34 looking to make that continuity there. Also, you could see the reduction in coverage to the southeast which is towards 35 the neighborhoods I am trying to cover there as well. 36 37 Jeff Schmitt: Mt. Sinai Road is….. 38 39 Lee Kerlin: That is moving out towards the county to the west, to the left. 40 41 Jeff Schmitt: Northwest. 42 43 Lee Kerlin: And Erwin running northeast. This is the site as proposed and this is the American Tower site. You can see 44 the difference in terms of what you are losing between those two. 45 46 Tom Johnson: To put it in perspective, the co -location opportunities are on this tower for other carriers who would 47 come in the future. The third spot on this tower is still a 45 foot better center than the ATC tower. The likelihood of 48 people wanting to co-locate on the ATC at that height is low depending on what the coverage objective is. It just 49 doesn’t meet our objectives. 50 OC Board of Adjustment – 6/8/2015 Page 13 of 68 1 Jeff Schmitt: Mr. Harvey, to the best of your knowledge, has there ever been any applications to Durham Coun ty to 2 eliminate the current height restriction on these monopole towers adding 20, 30 or 40 feet to an existing tower? 3 4 Michael Harvey: Not to my knowledge but I will point out to the board and we have captured this standard in our 5 Unified Development Ordinance and it is actually in part of the documentation Mr. Johnson submitted to you. State law 6 allows for increase in tower height where it doesn’t constitute a modification meaning you have to go back through a 7 process to get approval. If this tower was approved today at 125 feet, Mr. Johnson’s client could come back to the 8 county and propose an additional 15 feet of height two years from now and because it is under a certain threshold, it 9 would not have to go back through this board for review and appro val because it represents a minimal increase but I 10 can’t speak to Durham’s ordinance. 11 12 Tom Johnson: What you basically have under state law is a 15% increase in height or antenna if you go up to 20 feet 13 but I will have Mr. Kerlin address that, which is the most you can do on that America Tower without getting further 14 approval from Durham County. 15 16 Lee Kerlin: Generally, that is a practical amount. When a tower is designed, it is not designed to double its height by 17 attaching another tower on top of it so what would happen if you had a three carrier monopole may request one tier 18 above but when we are talking about 10 feet that is one thing, 70 feet would be a completely different tower. 19 20 Larry Wright: We are talking about co-locating on your tower and other towers. You have been in this industry for a 21 number of years, how does the industry look at a competitor other than T -Mobile coming in and co-locating on your 22 tower? How open are you to that? Not only you but a Verizon or AT&T? 23 24 Lee Kerlin: T-Mobile will not be the owner in this situation but we do own our o wn towers as well as Verizon, AT&T, 25 other towers. We readily share towers because it is not in our interest to build towers where we do no need to build 26 towers. We do not want to spend the money next to a Verizon tower if we could simply co-locate on a Verizon tower. 27 We extend that courtesy to them and they extend it to us. That reduces the number of towers in the community. 28 29 Tom Johnson: Even though T-Mobile is the initial carrier, the primary applicant is Skyway Towers and they are in the 30 business of leasing space on the tower so in this instance it is just like having an office building, what you may have 31 and you want to lease space in it. This tower is open for lease and to lease space to other carriers and that is not a 32 problem. T-Mobile wants the top spot on this tower. T-Mobile could need another spot at some point because they 33 need more room for antennas that could happen, but often times, once the tower is built it has more of an opportunity 34 for locations from other carriers. What Mr. Kerlin is saying is that even if you added the minimal amount you can add 35 on the tower assuming structurally it will handle it like the tower down Kerley Road, it will still not get high enough 36 because it is basically in a hole and it won’t get high enough to meet the objectives that T -Mobile has for this particular 37 site. 38 39 Mark Micol: If you co-locate on the Alltel tower, if you do two co-locations, would that dramatically improve the 40 coverage? 41 42 Tom Johnson: Your ordinance asked us to identify towers that are two miles away. That Alltel tower is 1.8 miles away 43 to the north, almost directly north. That is outside the search ring and under the state statute and even under your own 44 ordinance, it recognizes the fact that the search ring is of prime importance and under state law, we are not required to 45 look at anything outside the search ring and that is way outside the search ring. 46 47 Lee Kerlin: It definitely would not fill the requirement of the search ring. 48 49 OC Board of Adjustment – 6/8/2015 Page 14 of 68 Bob Hornik: I am an attorney with Brough Law Firm in Chapel Hill. I represent most of these people sitting out here. 1 Kind of a grass roots organization that call themselves ‘Keep Kerley Country’. I would like to ask Mr. Kerlin a few 2 questions, cross-examination, regarding his testimony. By the way, I was intimately involved in the Durham case. 3 There are important differences. Mr. Kerlin, do you work for T-Mobile? 4 5 Lee Kerlin: I do. 6 7 Bob Hornik: With respect to the coverage you are trying t o provide from this cell site... that is coverage that T-Mobile is 8 trying to provide, it is not a requirement of any FCC order or anything like that? 9 10 Lee Kerlin: That is correct. 11 12 Bob Hornik: It is your choice? Did anyone from Skyway or T -Mobile talk to the owner of 5266 Kerley Road about the 13 possibility of leasing space on that tower? 14 15 Lee Kerlin: I’m not aware of that. I’m sure the development person … 16 17 Bob Hornik: Do you know of anyone who talked to the owner of 5266 Kerley about building a separate tower at that 18 location? 19 20 Lee Kerlin: I do not. 21 22 Bob Hornik: It is possible as demonstrated by ….. 23 24 Mark Micol: The address that you are speaking of, is that the American Tower? 25 26 Bob Hornik: That is the American Tower site. Mr. Kerlin, this is the co-location of the propagation of co-location known 27 as Kerley Road site? 28 29 Lee Kerlin: Yes. 30 31 Bob Hornik: This is the propagation of the proposed site? 32 33 Lee Kerlin: Yes. 34 35 Bob Hornik: Did you consider a combination of a co -location at Kerley Road and co-location at the tower site to the 36 north? 37 38 Lee Kerlin: The tower site to the north at that distance would not provide the necessary extra coverage at this location 39 in the search ring. 40 41 Bob Hornik: It wouldn’t fill the gap between? 42 43 Lee Kerlin: It would not. 44 45 Bob Hornik: Did you actually do propagations? 46 47 Lee Kerlin: I did not. 48 49 Bob Hornik: So you don’t know that for a fact? 50 OC Board of Adjustment – 6/8/2015 Page 15 of 68 1 Tom Johnson: I object to that because the statute and the ordinance … well the statute says within the search ring and 2 I think you are referring to the Alltel tower which is not within the search ring. 3 4 Bob Hornik: In any event, it is your business choice, T-Mobile’s business choice to opt for a second cell site? 5 6 Tom Johnson: I object if it is questioning a business decision. 7 8 Larry Wright: Sustained. 9 10 Bob Hornik: You haven’t accosted out the commercial feasibility of any height or adding new tower at the existing 11 Kerley Road site? Is that correct? 12 13 Lee Kerlin: I haven’t done any calculations on what it would cost. 14 15 Larry Wright: May I ask a question of our attorney? Does this line of questioning……we really can’t rule on this can 16 we? Is it relevant to us… this costing out? 17 18 James Bryan: I don’t know how far Mr. Hornik wants to go with this but the statute says that the county may not require 19 information or evaluate an applicant’s business decision. 20 21 Larry Wright: That is where I’m…this was presented to us. Where are you going with this line of questioning? 22 23 Bob Hornik: I want to read the same statute that Mr. Johnson was reading to you earlier. Among the things you are 24 allowed to consider, the county, I’m reading from subparagraph, 153 A-349.52 subparagraph C, subparagraph 3 of the 25 General Statute. “A county may require applicants for new wireless facilities to evaluate the reasonable feasibility of co-26 locating new antennas and equipment on an existing wireless support structure or structures within the applicant’s 27 search ring. Co-location on an existing support structure is not reasonably feasible if co-location is technically or 28 commercially impractical or the owner of the existing wireless support structure is unwilling to enter into a contract for 29 such use at fair market value.” We don’t know if they haven’t costed out, considered the cost of modifying the Kerley 30 Road facility, whether it is technically or commercially impractical for this candidate to consider co-location there. 31 32 Jeff Schmitt: If you co-located on the existing tower, one half mile from you r proposed site here, the coverage you 33 would get is effectively no different than the before slide you are presenting here, correct, unless the radios are different 34 or the range is different. 35 36 Tom Johnson: There would be a hole here in coverage here. The re would be coverage north, are you suggesting if…. 37 38 Jeff Schmitt: If you just put your antennas… co-located them on the existing tower…. 39 40 Tom Johnson: The ATC Tower? 41 42 Jeff Schmitt: Yes. Why would the after and before map, it seems would be the same ? 43 44 Tom Johnson: No, because of the difference in the height of the antennas. The frequencies we are talking about are in 45 the microwave range of the distance of the antennas above the ground is very important to how far the propagation is 46 so if you are saying the difference in what we are proposing versus the ACT tower, there is a very large difference. 47 48 Jeff Schmitt: Yes. You would have to locate further down on the tower than the existing antennas that are there, is that 49 correct? 50 OC Board of Adjustment – 6/8/2015 Page 16 of 68 1 Lee Kerlin: The next position down. 2 3 Jeff Schmitt: So your doing that would affectively not give you any business leverage over what existing carriers have 4 with their antenna, is that correct? 5 6 Lee Kerlin: And let me speak to the technical aspect because you ask a question about, is it technically possibly to 7 mount the antennas. Well certainly it is technically possible to put antennas on there, radios on this and make a cell 8 site. Is it technically possible to provide the coverage that we want to provide in this area, the objective of the search 9 ring, at that, no, I don’t believe it is. 10 11 Larry Wright: Samantha, I would like your feeling. 12 13 Samantha Cabe: I would be interested in their response only because I read the statute to say that we may require 14 information necessary to determine whether co-location on an existing wireless support structure is reasonably feasible. 15 I don’t know how you determine some things reasonably feasible unless you are comparing. It wouldn’t be feasible if it 16 costs a whole lot more or if it didn’t provide….I think there is lots of factors to what is reasonably feasible and I do agree 17 that the sentence above that allows him to ask questions an d us to consider whether or not the owner of the existing 18 wireless support is unwilling to enter a contract for use at a fair market value. I would like to hear information on that. I 19 don’t think we should hear information on specific business determinati ons about what they may but we need to know 20 whether they considered it or not. 21 22 Tom Johnson: Mr. Kerlin doesn’t do that aspect of it. I do have people here who to do that aspect in terms of 23 contacting and the commercial… I will admit to you upfront from a commercial monetary point of view and we will 24 stipulate to this, it would probably be cheaper to locate on the existing tower as opposed to building a new tower. I’ll 25 take that away. That is fine, we will agree to that with no questions asked. The pr oblem is what Mr. Kerlin just said is 26 the technical impracticability of it because it doesn’t make sense to co -locate on an existing tower if you can’t get the 27 signal strength you are trying to achieve with this site and even adding a little bit to this st ill puts it at a height 28 disadvantage. That’s what we are presenting. We will stipulate whether you talk to him, whether you didn’t, it is pretty 29 obvious that the available height on the American Tower site is lower that where we are looking at locating. Monetarily 30 it really doesn’t matter because monetary is not driving this. 31 32 Lee Kerlin: I have a director I answer to. We have a search ring that has a proposed objective after the field of the site, 33 my director wants to see whether was met. I wouldn’t go to him with the ATC tower and expect at the end of the day to 34 have met my objective and to have the approval of my director in the end and that is what I was trying to talk about the 35 technical aspect. Yes we could co-locate on that, we are not going to achieve the objectives we are trying to achieve. 36 37 Tom Johnson: If Mr. Hornik doesn’t have any further questions of this witness, I can bring my others. 38 39 Michael Harvey: Mr. Chairman, before we bring another witness, I don’t wish my statement to be constr ued to lending 40 any credence to Mr. Johnson and Mr. Hornik’s arguments but I will remind the board, as we have outlined in our 41 abstract, page 55, Section 5.10.8(b) 4 subparagraph b, number 4 of the UDO establishes what I believe is a very 42 reasonable process by which the applicant is required to demonstrate why he or she cannot locate on an existing tower 43 within a half mile. I believe these requirements are consistent with what the state statute gives us the authority do to. I t 44 is obviously Mr. Johnson’s argument is that I can do it for the reasons we have summarized here and obviously it is Mr. 45 Hornik’s contention that is not correct but I want to remind the board that the five standards we currently have and abide 46 by; appropriate space on the existing tele communication wireless support structure is not available; applicants made a 47 good faith effort to negotiate an agreement has been unsuccessful; telecommunication equipment on the existing 48 wireless support structure is not compatible; adequate coverage by the applicant which goes to Samantha’s question at 49 the beginning of this hearing, adequate coverage by the applicant cannot be met at the location of the existing wireless 50 OC Board of Adjustment – 6/8/2015 Page 17 of 68 support structure or the existing wireless telecommunications structure cannot be ea sily modified. These are all “ors” 1 so the applicant has to demonstrate we can’t meet one of these standards, it’s not “and”. It’s not all five that have to be 2 met by our current ordinance. I believe some of the ambiguity some of you have expressed conce rn about with the 3 iteration of state statute is covered under our existing code. 4 5 Tom Johnson: We would agree with Mr. Harvey because that is exactly our point. The part about it not meeting the 6 objectives and not being technically sufficient at that site to meet the objectives of Mr. Kerlin has testified is our point. 7 That is one of those “ors” and that is the “or” we are focusing on because that is a key point here. 8 9 Bob Hornik: The co-location possibility on the existing Kerley Road tower does improve coverage in the area, right? 10 11 Lee Kerlin: Certainly. 12 13 Bob Hornik: It just doesn’t meet your standard for what you want to provide. 14 15 Tom Johnson: Please say what it does for you in terms of connecting with your existing towers. 16 17 Lee Kerlin: The proposal we have before you provides a lot of coverage out into the county to the northwest. We 18 expect connectivity to our network to the northeast of Erwin Road. We expect connectivity to the south and we also 19 provide more coverage into the neighborhoods to the southeast which is part of the objective. 20 21 Bob Hornik: You are saying the American Tower site would not do that? 22 23 Lee Kerlin: It does not meet those objectives. 24 25 Bob Hornik: The potential co-location at the Kerley Road meets all the same objectives but it just doesn’t go quite as 26 far, right, looking at the propagation map? 27 28 Lee Kerlin: It doesn’t meet them at the signal strength that we need to provide. 29 30 Bob Hornik: It covers almost the same area or territory but the dark green coverage is less, right? 31 32 Lee Kerlin: Yes, the total coverage is smaller. 33 34 Bob Hornik: Is the minus 90 dbm, do you drop calls at minus 90? 35 36 Lee Kerlin: It depends. You can’t say that at 90 you drop calls, quality is important as well as sign al strength. 37 38 Bob Hornik: So on your propagation maps, white is no coverage? 39 40 Lee Kerlin: Yes, that is off network for us when you consider various signal strength. I’m not saying you could never 41 reach a tower from that and don’t forget this is a two way street, your handset also has to communicate back to the 42 tower otherwise we would just make an FM broadcast tower and cover everywhere. 43 44 Bob Hornik: And negative 104 is kind of pale green? 45 46 Lee Kerlin: Yes. 47 48 Bob Hornik: And that is coverage, right? 49 50 OC Board of Adjustment – 6/8/2015 Page 18 of 68 Lee Kerlin: That is some outdoor coverage, possibly in car, not very likely to be indoors. 1 2 Bob Hornik: It is not your optimal but it better than 0. 3 4 Lee Kerlin: It is better than 0. 5 6 Bob Hornik: Negative 98 is the next shade of green; you get better coverage than negative 104. 7 8 Lee Kerlin: Car… you could still potentially drop in car, possibly some home structures, not likely in metal commercial 9 buildings and things like that. 10 11 Bob Hornik: And negative 90 is the olive color and that is better than negative 98 but not quite as good as 104, right? 12 13 Lee Kerlin: Of course. 14 15 Bob Hornik: How do you characterize a negative 90. 16 17 Lee Kerlin: We could send a good potential for indoor coverage, depending on the construction for residential, p ossible 18 commercial, construction again, these things are hard to say. Are you in the basement of your home, in an interior 19 room, or by a window? 20 21 Larry Wright: What is the objective for this line of questioning? 22 23 Bob Hornik: The objective is to demonstrate that with 105 at the Kerley Road site, you are getting expanded coverage, 24 not quite the signal strength he prefers but my argument is that it is not your obligation to try to provide him the signal…. 25 26 Larry Wright: We have heard him and we have heard what he has to say as far as dropping calls. He has been sworn 27 in and I think you are wearing down the board. 28 29 Bob Hornik: I would be careful about that but I also have to do my job for my clients too. 30 31 Larry Wright: I understand that but he is an expert and he has been sworn in. 32 33 Tom Johnson: I would like to call Bob Hill, he was sworn and he can speak to the conversations regarding alternative 34 sites because that is a question the board had and Mr. Hornik had so I will have Mr. Hill speak to that. 35 36 Robert (Bob) Hill: I am Robert Hill, Bob, I live at 1300 ____, SC and I was sworn in. 37 38 Tom Johnson: The board asks about whether communications with the American Tower site, looked at as an option 39 and … 40 41 Robert Hill: American Tower is a nationally known tower company that builds towers and leases spaces to all the 42 carriers. We have a master lease agreement with them. How we did this bill doing over 200 s ites throughout the 43 Carolinas, we vetted our MLA partnerships, which was Crown American Tower and SBA First. This tower before we 44 even get at the skyway as veted. We look at the available ____ Center, the propagation didn’t look good and we ask 45 them if there was a possibility of extending and we were told they couldn’t, we were told no, I don’t want to say the 46 wrong reasons but I believe it was something to do with setbacks and the way it was designed. Does that answer? 47 48 Jeff Schmitt: So that means you talked with the people who have the other tower? 49 50 OC Board of Adjustment – 6/8/2015 Page 19 of 68 Robert Hill: Yes. We are co-locating on 37 of their sites now. 1 2 Samantha Cabe: Could you state your name again? 3 4 Robert Hill: Robert Hill. 5 6 Larry Wright: And you are duly sworn? 7 8 Robert Hill: T-Mobile and I was duly sworn. 9 10 Tom Johnson: The preferences where you have got a contract already is existing, that is vetted first before it is given to 11 Skyway, who I primarily represent. This came to Skyway because the American Tower site was already vet ted and 12 would not work. 13 14 Robert Hill: I am the site Development Manager so I deal with leasing, the towe r companies and construction. 15 16 Mark Micol: Was finances a part of that decision? 17 18 Robert Hill: The reason we vet the co-locations first as far as cost, capital expense, they are the best way for us to go. 19 They are quicker; we don’t have to go through as many regulatory hoops as with a new tower. We try to avoid new 20 towers as much as possible but when you get into jurisdictions that have limited heights and 105% setback, it gets 21 difficult to not have to build a few sites. 22 23 Bob Hornik: Mr. Hill, you work for T-Mobile? 24 25 Robert Hill: Yes sir. 26 27 Bob Hornik: Did you personally speak with anybody about the American Tower site at 5266 Kerley Road? 28 29 Robert Hill: Yes. 30 31 Bob Hornik: Who did you speak with? 32 33 Robert Hill: Mark Landers. 34 35 Bob Hornik: Who is Mark Landers? 36 37 Robert Hill: He is in sales for at least the Carolinas, I’m not sure if he is more. My area is the Carolinas. 38 39 Bob Hornik: And he works for American Towers? 40 41 Robert Hill: Yes. 42 43 Bob Hornik: When did you speak with him? 44 45 Robert Hill: Last year, I don’t know the exact timeframe, probably October of 2014. 46 47 Bob Hornik: Did he refuse you a request to co -locate at 105 feet? 48 49 Robert Hill: No sir. 50 OC Board of Adjustment – 6/8/2015 Page 20 of 68 1 Bob Hornik: Did he refuse your request to co-locate at any height? 2 3 Robert Hill: No sir. 4 5 Bob Hornik: So if he didn’t refuse you…… 6 7 Tom Johnson: I object to this line of questioning because we stipulated the fact that they wouldn’t let us co -locate but 8 the height at which we could get. 9 10 Larry Wright: Where are you headed with this line of questi oning? 11 12 Bob Hornik: What I want to make sure I am clear about is that T -Mobile was not refused or rejected at that site rather 13 T-Mobile rejected that site. 14 15 Tom Johnson: I’ll stipulate that fact that American Tower would allow T -Mobile on the site at the available height. I will 16 stipulate to that. 17 18 Mark Micol: Your request was to add additional height but they said you could not do that becau se the tower was not 19 sufficient? 20 21 Robert Hill: When the 105 didn’t work, we asked to extend. I don’t have the e xact number but we have probably 22 extended about 20 sites, and we have asked for others that were not structurally viable or had setback issues. So yes 23 sir we did ask for that. 24 25 Tom Johnson: One of the other standards under your ordinance is impact on property values. We hired yesterday 26 David Smith a local appraiser to take a look at that issue and I would like to have….that analysis is in your packet with 27 pictures. He compared it against another subdivision in Orang e County where there is a tower. You can see from 28 those pictures, tab 21, you can see the pictures and what that tower looks like from those locations where you can see 29 the nice part of the subdivision . Mr. Smith analyzed if there were homes in that subdivision that you could not see the 30 tower and there were homes that could see the tower. It is all in the same subdivision and that was the basis of the 31 analysis. I would like him to come speak to his analysis and his conclusion regarding that. The tower r eport is part of 32 the record but I do want him to address that but obviously he needs to be available for questioning purpose 33 requirements. He has been duly sworn. 34 35 David Smith: I live at 3 Morristown Circle in Durham. I have been sworn. I am a state certified general appraiser. I 36 have been appraising primarily in the Durham/Chatham/Orange area for the past 30 years. I also have a n MAI 37 designation. That is a professional designation. I relate it to a CPA. You can be an accountant and not be a CPA. 38 You can be an appraiser and not be an MAI. I would like to read, there are two pages, from the report on page 11. The 39 potential adverse effect from any proposed improvement or environmental hazards, noise, odor, lighting, traffic and 40 visual impact. I think other than visual impact there is no evidence of any adverse possible impacts from this. There is 41 a line of trees along the northern, eastern boundaries so it does minimize it there and there will also be a wooden 42 structure around the equipment so that won’t look any different than say a residential fence or building. The difference 43 is the tower itself sticking up. To estimate the effect of a cell tower on adjoining or abutting properties, I located a 44 subdivision with a cell tower that was adjacent. The subdivision is part of the Lake Hogan Farms in Northeastern 45 Carrboro and has a total of 82 lots. The cell tower is to the east of the subdivision and the property where the tower is 46 located is adjacent to five of the lots. It is also visible from 27 of the other lots. Using the Triangle MLS I located sales 47 that occurred from March 2001 to July 2014. From those found, I considered only those without basements that were 48 built after 1999. There were a total of 84 sales because some of the properties sold more than once. Of these 46 did 49 not have a view of the tower and the rest did. The tower is very different structure. It was over 200 feet, it is a lattice 50 OC Board of Adjustment – 6/8/2015 Page 21 of 68 tower, and I believe it is lit but I am not sure of that. In my report I have charts of the Hogan Farms sales, the copies 1 are in my report. I adjusted the sales for the primary differences as closing date and garages and age and number of 2 fire places. I then divided that by the square footage of the building so you have a per square foot of va lue of the 3 different houses. Those with the view and those without. When I came down, the average came out to $152.70 per 4 square foot for those with a view and $152.77 without a view and $151.70 with a view so it was a difference of .65% 5 which is within the margin of error so based on that I don’t feel that a tower like this one which is much worse than the 6 one here the subject tower would have any adverse impact on property values. I will be glad to answer questions or go 7 in more detail in houses. 8 9 Tom Johnson: He did look at the visual impact that was put together from the report and what are the things that were 10 obvious in terms of looking at that and the results of that. 11 12 David Smith: It could only been seen from a few places and it was only a l ittle of it and it was not, as you brought up, 13 when you showed them. It was no more intrusive than the power lines were , except for one picture when it was directly 14 across from the retirement home where it was more visible. The impact was minor. 15 16 Tom Johnson: How would you describe the characteristics of the community where the subject tower is being 17 proposed from your perspective as an appraiser and your experience? 18 19 David Smith: It is sort of a mixed community. You have a farm, apartments, yo u have a large school. Then not too far 20 away in Durham, you have something like a huge subdivision and there is another further north so it is kind of a 21 transition area. 22 23 Larry Wright: I don’t know if you have had experience with this but have you looked at the difference in stealth towers 24 as far as communities in appraising property value opposed to monopole as opposed to the type of tower you see in 25 Hogan Farm. Is there a difference effect on property value from the various types of poles? 26 27 David Smith: I really wasn’t able to get to that level of detail. I looked through all of Orange County and this is the only 28 tower I found that had enough sales around it to derive some sort of indication. For that I need more data and it is 29 simply not out there. 30 31 Tom Johnson: Your analysis is based on a non-stealth tower? 32 33 David Smith: Yes 34 35 Tom Johnson: And the lattice tower? 36 37 David Smith: Yes. When someone buys a house, there are a number of factors they consider. If someone is buyi ng a 38 house that can see a tower; that is certainly something they will take into consideration. Will that affect them more than 39 the kitchen or the bathrooms or garage… so it is very difficult to get to a level you are talking about. 40 41 Bob Hornik: Who hired you to provide your report today? 42 43 David Smith: The attorney did. 44 45 Bob Hornik: Mr. Johnson? 46 47 David Smith: Yes. 48 49 Bob Hornik: How much were you paid? 50 OC Board of Adjustment – 6/8/2015 Page 22 of 68 1 Tom Johnson: I object to that. 2 3 Larry Wright: I think that is sustained. 4 5 Tom Johnson: I will admit that I paid him to do the report. 6 7 Bob Hornik: How much time did you spend on the report? 8 9 David Smith: Roughly a week. 10 11 Bob Hornik: 40 hours? 12 13 David Smith: Yes. 14 15 Bob Hornik: Have you ever prepared a report concerning the impact of a cell tower on property values before? 16 17 David Smith: Not for Mr. Johnson, but yes I have in the past. 18 19 Bob Hornik: In the past? How many times? 20 21 David Smith: Maybe in the past 5 years, maybe 15 times. 22 23 Bob Hornik: Have you prepared reports for cell tower owners and operators and carriers each time or have you done 24 reports for property owners? 25 26 David Smith: Never for property owners. 27 28 Bob Hornik: So always for the applicant of the cell tower? 29 30 David Smith: Correct. 31 32 Bob Hornik: Have you ever seen a location of a tower that would impact adjoining property owners? 33 34 David Smith: Yes. 35 36 Bob Hornik: How familiar are you with the Lake Hogan Farms towers? 37 38 David Smith: I drove out to the neighborhood and took pictures of it. There is a site of antenna search that gives you 39 details about it. 40 41 Bob Hornik: What came first, the tower or the houses in that section, do you know? 42 43 David Smith: I believe the tower was already there. 44 45 Bob Hornik: The tower was built about 1996, does that sound right?’ 46 47 David Smith: That sounds right. 48 49 Bob Hornik: Homes started being built there in around 2000 and 2001? 50 OC Board of Adjustment – 6/8/2015 Page 23 of 68 1 David Smith: Some are before that but I don’t consider them after 2000. 2 3 Bob Hornik: Do you know whether the property owner which … actually adjoins or abuts any of the properties that you 4 have evaluated in your report? 5 6 David Smith: Yes it does. 7 8 Bob Hornik: This is a photograph taken from the Orange County GIS site today in fact. Do you recognize the tower? 9 10 David Smith: Yes I do. 11 12 Bob Hornik: Are the lots facing northwest and west of the tower? Is there a powerline that runs between? 13 14 David Smith: There is an easement. 15 16 Bob Hornik: How wide is that easement? 17 18 David Smith: I don’t know. 19 20 Bob Hornik: How deep are those ____ ? 21 22 David Smith: I don’t know off the top of my head. 23 24 Bob Hornik: Is the tower itself in the wooded area? 25 26 David Smith: Yes, it is partially wooded. 27 28 Bob Hornik: It’s not in an open field? 29 30 David Smith: No. 31 32 Bob Hornik: When you say partially, what do you mean by that? 33 34 David Smith: You can see a dry area. 35 36 Bob Hornik: The lots on Hogan Farms, they are all wooded in the back? 37 38 David Smith: Yes. 39 40 Bob Hornik: No one has a view of this tower from an open field, is that correct? 41 42 David Smith: Yes. 43 44 Bob Hornik: The tower we are talking about tonight would be placed in an open field, correct? 45 46 David Smith: Partially. There are trees around part of it. 47 48 Bob Hornik: Tell me about woods around it. 49 50 OC Board of Adjustment – 6/8/2015 Page 24 of 68 David Smith: They are not very deep. It is a thin ribbon of trees to the left and then…. 1 2 Bob Hornik: Do you ever count the trees? 3 4 David Smith: No. 5 6 Bob Hornik: Is it possible there was a grand total of 12 trees? 7 8 Larry Wright: Can we proceed with the questioning please? I know where you are headed, let’s go there. 9 10 Bob Hornik: You said there were thin trees between the proposed site and the property to the left. 11 12 David Smith: They are tall and they screen. 13 14 Bob Hornik: How many trees are there along Mt. Sinai Road? 15 16 David Smith: I don’t believe there are any. 17 18 Bob Hornik: How many trees are there up along Kerley Road on the east side? 19 20 David Smith: I didn’t count those trees. 21 22 Bob Hornik: Super wide trees or is it trees like ____. 23 24 Tom Johnson: This is pretty obvious from the pictures I don’t know where this helps. I would object to continuing to 25 count how many trees. That is not the purpose of his expert opinion. It was an analysis of the site as compared to the 26 site as proposed... 27 28 Larry Wright: Let’s see where he is going with this if you can kinda get there. 29 30 Bob Hornik: I am trying to point out the dissimilarity of this proposed site and what his analysis on these forms and that 31 is the point I am trying to make. Regarding your information ____ hazards associated with the proposed, what is the 32 basis of that information? 33 34 David Smith: Information from the cell tower company. 35 36 Bob Hornik: What specific information did they give you about that issue? Are there going to be batteries associated 37 with that site? 38 39 David Smith: You will have to ask them those questions. 40 41 Bob Hornik: Will there be a generator there? 42 43 David Smith: Ask them those questions; they are more of an expert than I am. 44 45 Bob Hornik: What the basis of the ____ there will be no significant noise? 46 47 David Smith: Some _____. 48 49 Bob Hornik: ____ makes little noise. 50 OC Board of Adjustment – 6/8/2015 Page 25 of 68 1 David Smith: None that I have ever seen has made noise. 2 3 Bob Hornik: Do you know whether the equipment that is kept in the base station has to be cooled or heated? 4 5 Tom Johnson: I object this is beyond… he has asked questions this expert doesn’t know. 6 7 Larry Wright: Sustained. 8 9 Bob Hornik: I am exploring with him the basis for his offering that opinion or giving that information that we know is 10 associated with the site. 11 12 Tom Johnson: His ultimate opinion is based upon whether or not this proposed tower will adversely affect adjoining 13 property value by analyzing another existing tower adjoining another subdivision. That is what his opinion is based 14 upon. There would be just as much noise and other things on that tower as on the opposed site so that will be the 15 same whichever one you look at. 16 17 Bob Hornik: That is not necessarily so. You have a full issue of real estate value, a fully treed lot with mature trees 18 surrounding the cell tower as opposed to an open field with a cell tower. You have different effects. Noise might be 19 muzzled on one site that is not muzzled from another so its apples and oranges and I think it is important for the board 20 to consider that when they consider the weight and relevancy of Mr. Smith’s opinion comparing the Hogan Farm site 21 versus the proposed Mt. Sinai and Kerley Road site. 22 23 Tom Johnson: As for noise, the ordinance very clearly requires we have fencing and landscaping around the bottom of 24 where the equipment is so therefore, that will be the whether it is the Lake Hogan Farm site or this site. It has to be 25 covered under your ordinance as well and that has been brought out in previous testimony. 26 27 Bob Hornik: Nevertheless, if the professional ___ no significant adverse noise, no environmental hazards which is a 28 part of the basis of Mr. Smith’s opinion, he just told me he doesn’t have that information so again, for the board’s 29 consideration regarding noise to Mr. Smith’s opinion. 30 31 Tom Johnson: Again, Mr. Smith said he has been around these sites and did not observe any noise. 32 33 Johnathan Blitz: My name is Johnathan Blitz from the Durham County Bar and I’m appearing because I live at 5820 34 Ten Springs Lane and I would just like to point out to the board that competent evidenc e is what is called for by the 35 statute and whether or not a witness has been paid tens if not hundreds of thousands of dollars over the years doing 36 testimony for one side is supremely relevant to his case. I would ask the board to reconsider sustaining th e objection to 37 that testimony as it is crucial to the determining the bias of this witness. The second point I would make is, what we 38 have is a lot of objections and being supported by testimony by one of the attorneys and I would ask that we formalize 39 slightly and pay attention to what the witness is actually that he does or does not know because I think it is crucial for 40 the board only to consider that competent evidence and not learning counsel’s introduction of testimony such as what 41 will be shielding around the bottom of the other tower because I heard just from argument of the testimony. 42 43 Tom Johnson: I would object to that because the site plan and everything, Mr. Harvey admitted everything in the 44 application into evidence. The application includes the landscaping and the buffering so that is part of the site plan that 45 is already in record. I am not testifying to that that has already been admitted into evidence by this board. 46 47 David Smith: I would like to respond to something he said, I do very f ew of these. It is a very small part of my practice, 48 probably less than two percent. 49 50 OC Board of Adjustment – 6/8/2015 Page 26 of 68 Bob Hornik: Mr. Smith, did you investigate whether there had been any recent sales around the American Tower site at 1 5266 Kerley Road? 2 3 David Smith: No. 4 5 Bob Hornik: Just one half mile down the road? 6 7 David Smith: No. 8 9 Bob Hornik: So you are not aware of whether there had been any sites since that tower was built in about 2010? Any 10 sales of adjacent property? 11 12 David Smith: I researched sales around ones in Orange County. Is that in Durham County? 13 14 Bob Hornik: That is in Durham County. Was there a reason you limited your search to Orange County? 15 16 David Smith: This was in Orange County and it has different requirements. 17 18 Bob Hornik: Were you aware that the 5266 Ke rley Road site was just one quarter of a mile down the road from this 19 site? 20 21 David Smith: I don’t recall. 22 23 Bob Hornik: You have been out to this site? 24 25 David Smith: Yes. 26 27 Bob Hornik: And you didn’t see the Kerley Road tower? 28 29 David Smith: I was focusing primarily on this property and the ones around it. 30 31 Bob Hornik: No further questions. 32 33 Samantha Cabe: You said you were focusing primarily on this. Did you see the tower or not? 34 35 David Smith: This was a couple of months ago, I was driving around I saw lots of things. I don’t know if I saw it. 36 37 Samantha Cabe: Ok. You didn’t answer the question exactly. 38 39 Michael Harvey: I have a question, request for clarification for Mr. Johnson. Tab 21 contains the Impact Analysis 40 completed by David. The first page of Tab 21 is a statement regarding visual intrusiveness for surrounding properties. 41 Could you clarify, was the applicant, or you the author of that one page statement and then David Smith’s Impact 42 Analysis? 43 44 Tom Johnson: Right. I did that. That is my summary. We have to do a statement of digital intrusiveness for 45 surrounding properties as part of your ordinance. I will say that is not part of Mr. Smith’s report. 46 47 David Smith: I get my information from the tower people. I don’t know if there is a light on it, I don’t know if it is 48 required. I don’t know if it makes noise, I don’t know if it smells, they say it doesn’t. I do not have expertise to know 49 whether or not it smells bad. 50 OC Board of Adjustment – 6/8/2015 Page 27 of 68 1 Tom Johnson: Again, I can speak to that. There are photographs as part of your packet, and I will direct your attention 2 to the back of the appraisal. There are photographs of the property. Mr. Hornik was asking me about the visibility of 3 the tower to the adjoining properties. These are pictures of the tower on Lake Hogan Farm. And what did you find in 4 that observation of the tower with respect to the properties that you analyzed. 5 6 David Smith: That they were highly visible and more visible than the one on Kerley Road. 7 8 Tom Johnson: There were trees intervening but you could still see it. 9 10 Female: I’m sorry we can’t hear in the back can you use the mic. 11 12 Tom Johnson: Even though there were trees, you could still see the top of the tower. 13 14 David Smith: The tower was much more visible than from the Kerley Road site. 15 16 Tom Johnson: And why did you say it would be much more visible? 17 18 David Smith: Because they stick up over the trees a lot higher than the tower on Kerley Road and it is also a lattice 19 structure. 20 21 Tom Johnson: When you say lattice structure, what do you mean, as opposed to monopole? 22 23 David Smith: Opposed to a monopole, yes. 24 25 Tom Johnson: I would like to direct the board’s attention to the photographs that are in the back of Mr. Smith’s report 26 and I am glad for Mr. Smith’s availability to answer any further questions you may have regarding his report. Because it 27 seems to be so important according to what Mr. Hornik mentioned, I would like Mr. Hill to come back up. He can speak 28 to noise and things of that nature because he is the one tha t is in charge of the site so I would like him to speak to that 29 and clarify that. 30 31 Robert Hill: Not including construction, the 30 days during construction, we have a cell tech that drives a truck down 32 the access road, probably once a month would be the a verage so, that will be vehicular traffic on the site. As far as 33 noise, the only thing that makes noise on the site is the HVAC unit. Our equipment does not have that , just a small 34 handling unit. It is very small what we are putting up for this build ing but comparing the noise you would hear for future 35 tenants should say AT&T with a shelter. It sounds like the HVAC unit in your home. It is very comparable to a 12 by 20 36 shelter. That is the only noise that would be at a site. 37 38 Larry Wright: Do you have a generator there? 39 40 Robert Hill: No. Verizon does internal generators so you don’t hear them but the other carriers use a baffled generator 41 so they are not a generator you would hear going down the highway doing power and lights. I can’t really give you a 42 description but they are not as loud as a normal general generator but in this particular case, we don’t have generators 43 so there wouldn’t be one. 44 45 Larry Wright: On what par does it work if there is an overall power outage in the neighborhood? 46 47 Robert Hill: It doesn’t work for long. We lose power… the site doesn’t stay on air maybe 30 minutes. 48 49 Tom Johnson: Maybe on occasion if it is a critical site, you might bring in a generator? 50 OC Board of Adjustment – 6/8/2015 Page 28 of 68 1 Robert Hill: We have portable generators especially for a long coast during hurricane events we bring in a portable 2 generator to power the sites for evacuation and stuff like that. 3 4 Tom Johnson: Does that generator not unlike what a household generator might be that people use now days. 5 6 Robert Hill: Yes. They are about the same size 23W generators. 7 8 Tom Johnson: I don’t have any further questions. If the board does, they are welcome to ask Mr. Hill. Mr. Hornik 9 probably has some too. 10 11 Bob Hornik: I can’t pass up an opportunity. Mr. Hill, you don’t have or won’t have any battery backup power at this 12 site? 13 14 Robert Hill: All cell sites have battery backup power. On some carriers, they have big batteries inside their shelters . 15 Ours are very small and our equipment is small. 16 17 Bob Hornik: Describe for us the batteries you have there and how they are protected. 18 19 Robert Hill: They are inside a stainless steel enclosure and they are regulated by OSHA and I forget the other code 20 they have to be regulated by so they are not the type of batteries that could spill o ver and spill outside the enclosure. 21 There are four of them and they are about that wide, about a foot tall and 18 inches long and three inches wide. 22 23 Bob Hornik: Do you know what kind of batteries they are? Are they lead acid batteries? 24 25 Robert Hill: No. But I can’t answer what kind they are. 26 27 Bob Hornik: Would they be considered to contain hazardous materials? 28 29 Robert Hill: I don’t know. I’m not a battery expert. 30 31 Bob Hornik: I am trying to determine what kind of materials there will be on the site and what kind of battery or other 32 backup you have that might generate noise or hazardous materials or things that are relevant for the board’s 33 consideration. There are batteries but you don’t know what kind they are? 34 35 Robert Hill: No. I don’t know any details on the batteries. I’m sorry. 36 37 Tom Johnson: At this point, that is the testimony. I would like to have the opportunity for a summation but I think it 38 more appropriate that after Mr. Hornik presents his case then I would have an opportunity to rebut and then have a 39 summation. I am happy to answer questions or tender any of my experts for questions the board may have at this time. 40 41 Bob Hornik: I do appreciate your time and patience. I have a presentation but I am not qui te as high tech as Tom but I 42 do not have a PowerPoint but I do have elmo slides for us. 43 44 Larry Wright: Would you like these submitted into evidence? 45 46 Bob Hornik: Yes, I would like them submitted into evidence. 47 48 Larry Wright: Ok. 49 50 OC Board of Adjustment – 6/8/2015 Page 29 of 68 MOTION made by Jeff Schmitt to enter into evidence. Seconded by David Blankfard. 1 VOTE: Unanimous 2 3 Bob Hornik: I am Bob Hornik with the Brough Firm in Chapel Hill. 4 5 Michael Harvey: We are calling this Exhibit 1, is that correct? 6 7 Larry Wright: Is there one available? 8 9 Bob Hornik: I am here on behalf of …. I wouldn’t call it the defense but I would call it the opposition. I represent a 10 coalition of property owners who live in the Mt. Sinai/Kerley Road area who organized and refer to themselves as Keep 11 Kerley Country. Everyone here is part of our organization raise your hand and let yourselves be known. I want to start 12 by talking about the application and the ordinance and information that is in the record and the information we submit to 13 you that is not in the record that perhaps ought to be and then we will conclude my comments by introducing about five 14 witnesses who will speak on behalf of the coalition , each trying to focus on a particular issue or set of issues and I will 15 try to keep them focused on their comments and perhaps have a summation at the end. Looking at the packet, first and 16 up on the board now, this is part of the applicant’s proposal and it is the half mile search ring that is submitted in the 17 application and why I think that is important is two reaso ns; one to orient us, down here is the Hollow Rock Pools, that 18 is …… 19 20 Tom Johnson: Point of clarification. This is not the search ring for the tower, this from the balloon test. This is in a h alf 21 mile of the tower center and the search ring is different. 22 23 Bob Hornik: Perfect. Better clarification. The reason I wanted to point this out and use this is to illustrate among other 24 things is that the Kerley Road tower is located at just about at this number 10 on the applicant’s exhibit looking within 25 one quarter mile of the proposed site of the tower on the Bergman property and I think that is important for reasons that 26 we have already discussed and will discuss a little bit more. My second photograph was taken about a week ago, 27 maybe two weeks ago and it is a photograph…. 28 29 Tom Johnson: I don’t object to the photograph. I object to any of the information regarding property sales and the 30 caption because in these hearings under state law, in order to draw any conclusions from any property values, you 31 have to have an expert be in real estate or an appraiser. I object to any of that coming in and especially any opinion 32 regarding reduction of below the appraised value because that is solely the purview of an expert in quasi-judicial 33 hearings. 34 35 Bob Hornik: I am not offering this photo for the purpose of the caption beneath it. As far as I am concerned we can 36 disregard that…. 37 38 Tom Johnson: I would like to disregard that and have it stricken from the record as that is irrelevant and inconsistent 39 with the statutes regarding quasi-judicial matter. 40 41 Larry Wright: Can you state why, if you are going to disregard the caption, what is the purpose of this? 42 43 Bob Hornik: The purpose of this is that, see this indicated on the overhead, that is the Kerley Road tower. That is the 44 stealth monopine set back in the woods behind the house at 5266 Kerley Road and I offer that because as in Durham, it 45 is a 120 foot monopine tower permitted as a right in that district under the Durham UDO because it is only 120 feet and 46 it is a monopine. One of the standards in the Durham UDO and I know this because I was involved in the appeal that 47 Mr. Johnson mentioned earlier, has to do with concealed wireless communication facilities and a concealed wireless 48 communication facility in Durham, up to 120 foot tall, is permitted as a matter of right and the standard in Durham is that 49 the tower has to be at least…. 50 OC Board of Adjustment – 6/8/2015 Page 30 of 68 1 Tom Johnson: I object to anything regarding Durham, this is a hearing in Orange County. 2 3 Bob Hornik: Give me a minute. 4 5 Larry Wright: Let him proceed. 6 7 Bob Hornik: The standard in Durham is whether you have the least visually obtrusive facility and the standard here in 8 Orange County, in your own UDO is whether this proposal will be the least visually intrusive and I offer this to show th at 9 the contrast was proposed by the applicant here with what was done in Durham at a site less than a quarter of a mile 10 down the road. 11 12 Tom Johnson: Again, I object, because the Durham ordinance is not in front of you. The Durham Ordinance is different 13 and I understand the point of that type of tower versus what we proposed but so far as comparing the ordinances, the 14 Durham Ordinance is not before you nor relevant. I will consent that there is a stealth portion of the Orange County 15 Ordinance that would be relevant to our proceedings. 16 17 Samantha Cabe: What I got from that is you are presenting this to see visually the difference in what was done here 18 with what is being proposed. 19 20 Bob Hornik: Absolutely. Talking about the Durham Ordinance, if my testimony on Durham’s Ordinance is not good, 21 then so is their testimony about what is allowed and what is not allowed in Durham. 22 23 Tom Johnson: I’ll agree to that I was just speaking to a case that had been heard in Durham. I don’t consider it. 24 25 Bob Hornik: This third photograph is a photograph of the proposed site on the Bergman property taken from the 26 adjoining property, this is the Ann Hall property. Ms. Hall will speak a few words in a moment. These trees along this 27 property line, those are the trees Mr. Smith spoke about a few minutes ago that was more a visual barrier between the 28 Hall property and the proposed tower on the Bergman property. This shed will be moved or removed from the site so 29 the tower can go in approximately that location maybe a little bit further to the east on that site. Essentially this is the 30 view that you have now from the Hall property to the site where the tower will be built on the B ergman property. 31 32 Larry Wright: Where was the photographer on this one? What is it on… the witnesses that will be testifying? 33 34 Bob Hornik: Ms. Hall, and I think Ms. Wilkins who took the photograph will both be testifying. 35 36 Larry Wright: And that….on their property? 37 38 Bob Hornik: This aerial photograph was taken from the application package that ties the discussion I was just giving 39 you, this indicating the shed that will be moved or removed from the Bergman property. The photograph was taken 40 from approximately this location on the Hall property. The house is right next door here. This is the open field. Here is 41 the water, strawberry farm, here is the nursing home, Forestview School and this location to orient the board to the site 42 and surrounding area of the site. You will see that the proposed tower location is essentially in an open field, part of a 43 horse farm on the Bergman property. These first photographs were taken from Mr. Smith’s report, the one he just 44 testified about. These are photographs of the area of the proposed tower taken from…this is along Mt. Sinai Road, this 45 is the Hall property. This is Mt. Sinai Road looking almost due north at the tower site and shed and these are the tree 46 lines between the Hall property and the tower site. 47 48 Larry Wright: Point to those trees again. 49 50 OC Board of Adjustment – 6/8/2015 Page 31 of 68 Bob Hornik: It is not a thick growth of trees but a single line of trees. This is a photograph taken from the application 1 package and it shows the Lake Hogan Farms Tower. This label confirms tower. Again, I was talking to Mr. Smith about 2 this just a few minutes ago, Redfoot Run, the access drive into the Lake Hogan Farms Tower. The tower is in fact 3 surrounded by a growth of trees. Not just a line of trees but a growth of trees. This is the Duke Energy power line that 4 lies between the tower site and the Lake Hogan Farms properties. You w ill see that the rear yards of the adjoining… I 5 say adjoining because they join the power easement not the tower site. The Lake Hogan Farms properties are heavily 6 wooded in their rear yards. These photographs are taken from Mr. Smith’s report. They show the view from 106/107 7 Lake Hogan Drive towards the tower, the tower in the distance between the trees. Bottom photograph was taken from 8 103 Randolph Court, Lake Hogan Farms. You can see the tower behind it. Going back to the previous photograph, 9 here is Randolph Court, there is the tower. This is Hogan Woods Circle and the tower. Here is a photograph of the 10 Lake Hogan Farm’s tower taken from the front of 103 Randolph Court about three weeks ago. I would ask the board to 11 compare it to the bottom photograph on the previous page. There is a considerable difference in the visual effect of this 12 tower in May compared to whenever it was that Mr. Smith or whoever took that photograph which was used in Mr. 13 Smith’s report. I was sworn in and I can testify that Lake Hogan Farms really don’t know that this tower is there 14 because it is obscured by trees for nine months of the year. This photograph taken about three weeks ago is 15 essentially the same photograph as the top photograph from 106 and 107 Hogan’s Woods Circle. If you compare the 16 two, you can see this tree is this tree. Here is the tower in the background. In this photograph, you just never see the 17 tower. Both of the photographs taken from Mr. Smith’s report from 301/306 Hogan Wood’s Circle where you see the 18 tower in the background from 204 Hogan Woods Circle where you see the tower in the background. If you look at this 19 photograph which was taken three weeks ago, a little closer up than the photo at the top of this page , they have the 20 same two buildings just a little closer up. There is the tower, the trees in the background. Again, this tower is in the 21 back yard of all these lots that we are talking about at Lake Hogan Farms so no one walks out their front door and sees 22 this tower. Here is another photograph of the same tower. You can see the very top of the tower, you can’t see any of 23 the base of the tower. This is from 306 Hogan Woods Circle. Another view of the Lake Hogan Farms tower from 204 24 Hogan Woods Circle. Again, the tower is primarily… except the top is obscured by trees and growth. Another 25 photograph taken from Mr. Smith’s report showing the Lake Hogan Farms tower from the access drive and from 26 305/314 Hogan Woods Circle. Here is a photograph of the tower from 305 Hogan Woods Circle . A photo of the tower 27 in the distance at 314 Hogan Woods Circle. Here is a photograph of the tower as you look from here to up the access 28 drive to the tower site. You see the base station, you see the tower and you see a pretty significant growth of tr ees 29 surrounding the base of the tower. I will remind the board that the Lake Hogan Farms tower was built in 1996 predated 30 the existence of the homes in the Lake Hogan Farms subdivision so unlike the situation here where you would have the 31 support of a previous tower, the 129 foot monopole being placed where it doesn’t already exist in Lake Hogan Farms 32 you had a developer building and residents buying in a location where the tower already existed. That is an important 33 difference. This is an aerial photo we had prepared that shows the search ring…. 34 35 Tom Johnson: Is this part of this packet? 36 37 Bob Hornik: It is a separate photo that was printed out today. 38 39 Jeff Schmitt: So the answer is… 40 41 Bob Hornik: I do not have a copy of that at the moment but I’ll sub mit this for the record. Here we have the Orange 42 County/Durham County line. The tower proposed in this location and the data indicates that 91 percent of the search 43 ring is in Durham County and 9 percent of the search ring is in Orange County and we think that is important for the 44 board’s consideration when the board considers whether this tower at this location satisfies the requirements of the 45 Orange County UDO. I want to talk for a few minutes about some of the requirements of the UDO. 46 47 Samantha Cabe: What correlation are you attempting to make between the search ring and the propagation because I 48 think they are two different of things. 49 50 OC Board of Adjustment – 6/8/2015 Page 32 of 68 Bob Hornik: I’m not trying to make any correlation between the propagation and the search ring but I do want to poi nt 1 out that…the purpose of the search ring theoretically is that citing a tower within the search ring will satisfy or achieve 2 the applicant’s objectives to provide coverage that is still straight by the propagation study. I suppose the point of this 3 particular photograph and this information is that more than 90 percent of this search ring is located in Durham County ; 4 only 9 percent is in Orange County. A good portion of the area supposedly covered is located in Durham County, some 5 in Orange County, no question about it. The applicant hasn’t demonstrated any investigation of other locations that 6 may be suitable in Durham County or elsewhere. They really said this was the site and that is a bout it and I think that is 7 important for the board’s consideration when you look at the criteria when you are supposed to apply to make a 8 determination on the application. 9 10 Samantha Cabe: Is there something in the statute or ordinance that allows us to require them to look outside their 11 search ring. 12 13 Bob Hornik: I don’t think there is anything that neither the statute nor ordinance that requires you…well the ordinance 14 talks about the two mile radius but I think the statute limits you a little bit with r espect to the search rings. I don’t 15 disagree with Tom’s saying it is about the impact of the statute on that. This case and this application, I really think, 16 boils down to two points for the board’s consideration. I think it is hard to argue under 5.3.2 (A).1 that cell tower and cell 17 service generally promotes the public health safety and welfare. I’m not going to focus on those two criteria. The two 18 criteria that I am more concerned about are subparagraphs 2 and 3 . Subparagraph 2 deals with the impact and 19 whether the proposed cell tower will enhance or maintain the value of adjoining property. 20 21 Tom Johnson: Again, I renew my objection that if he is going to speak to that, that he needs to have an expert, either a 22 real estate expert or an appraiser to give an opinion to contra the appraiser we put up. 23 24 Bob Hornik: I’m not going to offer an opinion on that but my point is that I submit to the board that the information 25 presented to you by the applicant who has the burden of proof that it doesn’t satisfy the requirement. It is my confident 26 and substantial evidence that the proposed facility will maintain or enhance the value of contiguous properties. Mr. 27 Smith’s report didn’t even address the impact on any adjoining or contiguous properties. 28 29 Larry Wright: Based on ….. 30 31 Bob Hornik: Looking at the Lake Hogan Farms tower, that Lake Hogan Farms tower does not abut or adjoin any of the 32 properties that you could use as comparison for this particular site. I submit, we are talking apples and oranges. The 33 Lake Hogan Farms properties and that cell tower are completely different in character, different in factual circumstance 34 than this tower at this location. This tower is a tower in an open field, there is not a stand of trees around it, there is a 35 line of a few trees at the adjoining property line on Ms. Hall’s property. The ___ was going to be out in the field directly 36 across the street from the ____, it’s not the same application or the same affect. 37 38 Tom Johnson: Wasn’t Mr. Smith trying to make a correlation between those visibility and non-visibility and showing 39 there was no difference in sales. 40 41 Bob Hornik: I think that is what he was trying to do but he did not do it adequately and that his report should n’t be given 42 the weight he would want it be given. The second point is Section 5.3.2(A)2c. 43 44 Larry Wright: I would also like to call Mr. Smith because I have another issue. Did you get an assessment to encounter 45 that? 46 47 Bob Hornik: We didn’t get an assessment to counter that. We don’t have to prove t hat the tower will have a negative 48 impact on the value of your property. The applicant’s burden of proof is to establish that the tower will enhance or 49 maintain the value of the adjoining property. That is their burden of proof, not our proof. You don’t have to prove the 50 OC Board of Adjustment – 6/8/2015 Page 33 of 68 negative, they have to prove positive by substantial evidence and I submit to you that they have failed to do so. The 1 other criteria is whether the location and character will be in use and harmony with the area and I think the witnesse s 2 we will present to you will focus their testimony on whether this particular proposal is harmonious with the character of 3 the area. I submit to the board when it is all said and done there will be enough evidence in the record for this board to 4 determine that the proposed cell tower as proposed and whether it is stealthified by making it a modified or by putting 5 antennas only two feet rather than however many feet out based on the tower. That conclusion that the tower itself is 6 so visually intrusive that it is inconsistent with the current lay of the land and it is inconsistent with the generally rural, 7 agricultural of the area. The first witness I would like to call is Ms. Ann Hall. 8 9 Tom Johnson: There is a lot of things stated there, do I have a chan ce to ask a couple of questions of Mr. Hornik about 10 what he presented. At this time, you would admit there is no tower on the Bergman property? 11 12 Bob Hornik: Correct. 13 14 Tom Johnson: How would you analyze the impact on the Bergman property if there is no tower to analyze? 15 16 Bob Hornik: I looked for similar towers in similar locations to try to determine whether the element of this tower at this 17 location would have an impact on adjoining properties. 18 19 Tom Johnson: Isn’t that what Mr. Smith did? 20 21 Bob Hornik: That is not what he did. 22 23 Tom Johnson: Didn’t he choose Lake Hogan Farms where there is already a tower that has visibility in some lots and 24 did not have visibility from others and made an analysis on the impact of property values based on an existing an d drew 25 his conclusions based on that if there were a tower at the B ergman property using another subdivision in Orange 26 County. 27 28 Bob Hornik: One of the things he didn’t do was consider the fact that the Lake Hogan Farms tower was there before 29 the homes were there and therefore the impact on property value may have been when the lots were sold back in 30 1999/2000. 31 32 Tom Johnson: Mr. Smith lies his property timeframe from 2001 to 2014 where there were actually come turnovers in 33 house sales. Wouldn’t you say if that were closer to the towers and saw it versus if you were not? 34 35 Bob Hornik: I would say that was more factored in when the homes were built and initially sold. 36 37 Tom Johnson: But they were sold in that timeframe as well correct. The other things I ha ve to ask is that you live in 38 Lake Hogan Farms I guess you have been out there. Is that tower lighted? 39 40 Bob Hornik: I have no idea. I can’t see it from where I live. 41 42 Tom Johnson: It is over 200 feet correct? 43 44 Bob Hornik: Not according to the report. 45 46 Tom Johnson: For the Lake Hogan Farms? According to his report, I have right here the tower detail not registered …. 47 48 Bob Hornik: That is 170 feet. 49 50 OC Board of Adjustment – 6/8/2015 Page 34 of 68 Tom Johnson: It says height obstructer 213.9 feet. 1 2 Bob Hornik: Somewhere in your report it said 170 feet. 3 4 Tom Johnson: I’m reading the report you presented to the board which was in Mr. Smith’s report. It says structure 5 characteristics ground elevation 548.3 feet height obstructer 213.9 feet overall height 762.2 feet. 6 7 Bob Hornik: I saw it somewhere. 8 9 Larry Wright: Ready to call your witness. 10 11 Bob Hornik: Ann Hall please. 12 13 Ann Hall: My name is Ann Hall, I live 5916 Mr. Sinai Road, Durham, NC 27705. 14 15 Larry Wright: Have you been duly sworn? 16 17 Ann Hall: Yes I have. I’m Rebecca Ann Hall speaking as an adjacent property at 5916 Mr. Sinai Road. My husband 18 and I live next door to the Bergman property where T-Mobile proposes to build a 125 foot cell tower. One of our 19 daughter’s lives next door at 5912 Mt. Sinai Road and the adjoining property beside 5906 Mt. Sinai also belongs to us. 20 All three of these properties and an additional tract at 5900 all adjoin the B ergman property on the back of the tracts of 21 land. I have lived here since 1957. All homes were built on the tracts of land in the 1930s on land purchased from the 22 Crabtree Farm which the Bergman property is part of his farm. Over the course of the past 58 years having been 23 raised on a large farm myself on the Orange County/Alamance County line in my younger years, I have seen and 24 enjoyed the farm, the horses and the rural agriculture setting her e at where I now reside. I can walk out my door in the 25 morning and listen to all and watch the horses and enjoy the perfect quiet character of the community. The cell tower 26 will intrude on the enjoyment of my property and surrounding property in our neighborhood. The plan for the tower I 27 have seen places it in the middle of an open field next door to our house. It will loom overhead just 137 feet from our 28 property line and maybe 150 feet from our house. There is no question that the cell tower will change the character for 29 this area and not in a positive way. People who visit their loved ones in the nursing home and those for an afternoon in 30 the area will be looking at an ugly metal tower, out of place instead of the beautiful countryside setting. The pictures 31 have been taken and are available to be seen. Since there is a tower behind the nursing home and have them told it is 32 not high enough to do the job. Why build a tower on the front side of the n ursing home where the property elevation is 33 not any higher. Grove Road at the top of the hill has a much higher elevation, which seems to me they would be 34 looking for a tract of land of this nature. At the top of the hill, on Kerley Road, you can see bui ldings at Duke University, 35 South Square Mall and buildings around the hospital in Chapel Hill from that point on the road. I feel there are other 36 locations that could be used that are more suitable with higher elevation. If the tower needs to be in this area for 37 whatever reasons, there are other locations where the tower can be built which would have less impact on us and the 38 community. There is a big open field behind our house as stated earlier. There is a copy of the Orange County GIS 39 aerial photograph which shows it. Our house is outlined in red. The open field is just above our property in the photo. 40 It is surrounded by trees that could be used as a buffer and has higher elevation located on the Ber gman property. This 41 seems a better location, less of an eyesore and much less of an impact on our property as well as not affecting a 42 neighborhood along a main road. We and others in surrounding areas even though it still joins our property if the tower 43 was there instead of in the field to the side of the house. We feel that being in a different location will not affect the 44 property value of our property if the tower is not built on Mt. Sinai Road. My husband and I will be the ones most 45 directly affected by the cell tower. We have worked very hard through the years for something of this nature to cause 46 our property to be of less value and we are opposed to the tower being built at this location on Mr. Sinai Road. It would 47 not be compatible and harmonious with the rural residential and agricultural c haracter around us which we feel is very 48 important in our lives. We appreciate your consideration in this matter and thank you. 49 50 OC Board of Adjustment – 6/8/2015 Page 35 of 68 Tom Johnson: I would object to any opinion of value because she is not an expert. 1 2 Samantha Cabe: Did anyone ask you whether or not they could place the tower on your property? 3 4 Ann Hall: No. I didn’t know about the tower until the first balloon test came up. I didn’t know anything about it. 5 6 Samantha Cabe: Do you know if her property is within the search ring Mr. Johnson? 7 8 Tom Johnson: Ms. Hall’s property is within the search ring. 9 10 Ann Hall: Is the other property that I was speaking of that is behind my property across the back of the property line. 11 12 Samantha Cabe: I thought you were saying that was your property. 13 14 Jeff Schmitt: The open field she spoke about. Is that your property? 15 16 Ann Hall: No. It is part of the Bergman property. 17 18 Samantha Cabe: The same owners who own this property? 19 20 Ann Hall: Right it is. And there is a road that goes in at the upper part of t hat Bergman property up Kerley Road. It is 21 called Bergman Lane. There are houses up there but they are on the outside of the field area where there is lots of 22 trees and things in between them but the part I am speaking about is where the tower could be c loser to my property 23 which would not affect those that are in the field that are up higher and I don’t have a problem with that. It is where it i s 24 secluded and wouldn’t be seen. People would never know it was up there and it is a much higher elevated are a. 25 26 Mark Micol: Was that brought up at the town hall meeting? Did you bring that up at the town hall meeting? Were you 27 present? 28 29 Ann Hall: I have been at some of the meetings and I have mentioned this but not brought out that we discussed it or 30 anything. The field on how it adjoins… and some that adjoins my other piece of property; we mow that and keep it 31 mowed all the time. The incline starts along that way in that field. It goes up a lot more even than beside my house 32 where the field is where the tower is to be. As you go up there and cross the line, it goes on to the Bergman property 33 there. It keeps going up even higher. It’s not level and then goes up all the way. It’s further on that end and it’s higher 34 on that corner. There are lots of pine trees and other trees that are completely around this hill and I can’t tell you how 35 many acres are there but it’s a large field. Much larger than where they want to put this. 36 37 Tom Johnson: The alternate location you admitted is closer to so me other homes, closer than the proposed lots. 38 39 Ann Hall: No. 40 41 Tom Johnson: The tower wouldn’t be closer to other homes? 42 43 Ann Hall: No. None, whatsoever. 44 45 Tom Johnson: There are no homes up there? 46 47 Ann Hall: There are some homes where you come in on B ergman Lane which is further up at the hill almost near 48 Kerley Road. The height that I was talking about where you can see where it cuts into the woods there. No there are 49 no houses within that field or in those trees. 50 OC Board of Adjustment – 6/8/2015 Page 36 of 68 1 Tom Johnson: I am talking it would be closer to some of those subdivisions that are down that end of Kerley Road? 2 3 Ann Hall: I don’t think so. 4 5 Tom Johnson: Have you run a balloon test or pictures or anything to show….. 6 7 Ann Hall: Have I run a balloon test? No. I wouldn’t know how to even start. 8 9 Tom Johnson: I understand. 10 11 David Blankfard: If you look at number 21, there is a topo map that shows the piece of property that you are speaking 12 of has higher elevation. 13 14 Tom Johnson: Yes. Just getting in to higher elevation. I was just getting at the proximity because there are other 15 homes up there; there is another subdivision up that way. 16 17 Samantha Cabe: Have you seen Attachment 1 in the packet provided to us by staff that was submitted by Michael 18 Harvey into evidence? 19 20 Tom Johnson: We are getting down a road we can’t get under. We have to pick a spot where we negotiate with an 21 owner to put a tower. The tower site we choose has to be evaluated based on the factors in the ordinance. It is very 22 clear from case law and other law that the purpose of this board isn’t to go decide if I come up with a McDonald’s 23 location at the corner coming into Hillsborough, you don’t try to decide, why don’t you go talk to that property owner and 24 buy the property from them. We are looking at this site, and whether this site complies, so this is the site we have been 25 able to negotiate and present to the board not relocating the tower somewhere else. 26 27 Samantha Cabe: So I guess my question is that it appears that it is the same property owner, it’s the same tract of 28 property so my question for you is did you attempt to negotiate a different location with the same property owner. 29 30 Tom Johnson: We negotiated with the property owner for the location that the property was willing to put the tower and 31 that is the location that was identified and I can have Mr. Nekosha who actually did the negotiation testify to that fact. 32 We talked to Ms. Bergman. We have to deal with willing property owners, willing buyer, willing seller. In this case, 33 talking to Mr. Bergman, that was her preference because if you move it otherwise, you’ve got another home up there on 34 the Northern end that is not Ms. Bergman’s home either if you tried to move it. There could be a variety of factors, I am 35 just pointing out that could be one factor of many but the thing is Ms. Bergman determined in negotiations with her is 36 where she preferred along with the tower company. 37 38 Larry Wright: I think we are getting into closing arguments, Mr. Smith has reminded me of this twice and I think we are 39 still listening to witnesses. Is that okay? 40 41 Tom Johnson: I guess my point is getting down the road of trying to choose where the site goes is not as much as 42 choosing whether this site for a variety of reasons meets _____. 43 44 Larry Wright: I think we have heard this witness and we are ready to move on. 45 46 Ann Hall: That is fine. 47 48 Eve Olive: I have been a resident of 5815 Mt. Sinai Road since 1971. I was born in Tennessee and grew up in South 49 Africa. I am an architect by training with a degree fro m the University of Motile, South Africa. I practiced architecture in 50 OC Board of Adjustment – 6/8/2015 Page 37 of 68 South Africa, Switzerland, England and the United States. Locally, I worked for the architectural firm of Archie Royal 1 Davis, AIA in Durham and for the firm of _____, AIA in Chapel Hill. Projects I worked on included the Durham County 2 office and Crabtree Valley Mall in Raleigh. I was engaged in these and many other architectural projects for a period of 3 five years. Then I focused on educational work, helping to found the Emerson Wald orf School in Chapel Hill and 4 designing its first buildings. Presently I consult on campus development. I believe that my training in architecture and 5 city planning as well as the international travel I have done to famous sites qualifies to me to offer a professional 6 opinion on whether something is harmonious, visually appropriate or well planned. I lived in ___ a quarter from the 7 proposed site of the cell tower and pass it daily. Careful zoning to date has preserved the rural character of this area. 8 All who drive through this rural beautiful area have appreciated the horse farm on the corner of Mt. Sinai and K erley 9 Roads. It has added to the unique rural, agricultural character of this farm of the rural buffer. Leaving it unchanged 10 would add to the richness of the rural experience not only for the residences but for all who pass this way in search of 11 nature and solitude. After all, the idea of the rural buffer zone was designed to protect residences and visitors alike 12 from such visual intrusions as cell towers. From an aesthetic point of view, this cell tower would be total out of keeping 13 with the rural character of the area. There are almost no trees on the Mt. Sinai Road property and the tower would be 14 completely visible from the road and would degrade the view at the cross roads. Since we are on the border of Duke 15 Forest, thousands of people from Durham and elsewhere come to this area for a rural experience. They come to ride 16 horses, to pick strawberries, or just stroll through the forest. The proposed placement of a 129 foot cell tower would 17 profoundly degrade this experience. 129 foot tower is as hig h as a 12 story building. Apparently it is to be surrounded 18 by a 60 foot by 60 foot solid wood fence, eight feet high with 3 strands of barbed wire on top. This construction is most 19 likely to remind one of a prison compound. The tower would be totally v isible from Mt. Sinai and from the corner where 20 Mt. Sinai meets Kerley and where there are absolutely no trees. I think of five towers within a five mile radius of this 21 proposed tower and each one is tucked away and discreetly hidden in well established w ooded areas off of minor 22 roads. This proposal is totally exposed with no possibility whatsoever of hiding the tower or the 3600 square foot base. 23 There is also a very loud humming noise which would integrate form the equipment coming from the base of the tower. 24 25 Tom Johnson: I object to that unless there is a basis for that. 26 27 Eve Olive: A lot of towers do hum but maybe your tower would not hum which would be an improvement. The 28 application states that the proposed cell tower is in an open field. The ap plication then goes on to state that the existing 29 trees and terrain do an excellent job of hiding the proposed tower. This statement is wildly inaccurate. There are only 30 five trees along this southern boundary or approximately 450 feet. This meets that the nursing home residents across 31 the road currently have a charming view of the horses in the pasture. It is greatly valued view. Those patients who are 32 able to roll themselves upfront in their wheel chairs and visitors wheel them to see the horses in t he pasture across the 33 road. We would like to think they would never have to look at a cell tower instead or at something that resembles as 34 prison enclosure. Recently a drunk driver careened right through the horse pasture fence and into the field where i t is 35 proposed to locate the tower. If the car had struck the wooden fence and burst into flames, he could have had a very 36 dangerous situation on our hands. This is another reason for locating the tower in a less exposed location and away 37 from a heavily traveled road. I have reviewed the application and see that the vast majority of this search ring lies 38 within Durham County. It seems reasonable that Durham County bear the burden of siting this tower since that is 39 where the vast majority of the search ring lies. Furthermore, I did not notice any discussion in the application of an 40 alternative location on the American Tower site at 5266 Kerley Road. Related to the American Tower site, I did not see 41 any reference in the application to raising the height of the existing tower at Kerley Road if indeed the tower height is 42 affected that remains co-location. The Orange County Unified Development Ordinance requires that applicant 43 demonstrate the proposed tower is the least visually intrusive alternative. I wou ld hazard to guess that rather being the 44 least visually intrusive alternative that it is the most visually intrusive proposal that this planning board has ever been 45 asked to consider. It feels as those this area is under an arsenal to be turned into a utility cluster with a visually 46 intrusive siting of the proposed cell tower in addition to the existing cell tower at 5266 Kerley just ___ there is no doubt 47 that the citing of this cell tower will have an adverse effect on property values in the area as well. I am speaking as an 48 architecture and a property owner. This area is legally designated as a rural buffer. We ask the planning board to 49 recognize the visually intrusive nature of this proposal. We ask the planning board to recognize the resulting 50 OC Board of Adjustment – 6/8/2015 Page 38 of 68 degradation of the rural quality of the rural part of this buffer and we ask the planning board to fulfill their obligation to 1 protect the legally established rural buffer from this intrusive unaesthetic high tech assault on the rural quality of the 2 buffer. We have appropriate ordinances in place, could we please respect and use these ordinances. 3 4 Mark Waller: My name is Mark Waller. I live at 5005 Kerley Road in Durham and I have been sworn in. I am also the 5 owner and operator of Waller Family Farm which is located directly across the street from the proposed cell tower site. 6 My family has been farming this farm since the 1940s. My father, who turns 90 this Saturday still lives in the home 7 located at the corner of Mt. Sinai and Kerley Road. The view from h is recliner as he sits in his den and looks out his 8 window is directly into the pasture where the tower is proposed. We are a diversified farm, we still have cows, chickens 9 and vegetables. We also conduct educational farm tours in the fall that teach kid s where there food comes from. 10 However, we are best known for our strawberry you pick operation. We are about to finish our eleventh season of 11 strawberries and hope to have many more years to come. Each spring we have a few thousand people come out to 12 enjoy some family time and pick some strawberries. You don’t have enough time to tell you all the wonderful, 13 heartwarming comments told to us each year at the farm but here are a few examples from this year. Thank you so 14 much for the wonderful opportunity to relive my childhood. Now I can come pick strawberries with my mother or my 15 grandmother and make new family memories. A little lady told me that after a hard day at work she looks forward to 16 coming and relaxing to the sounds of cows blowing, roosters a nd yes our rooster crows all day. Another lady thanked 17 us for not selling out. Thank you very much for not selling out to development and keeping this magical place going. A 18 cell tower located directly across the street from the strawberry field from wh ere these people will be picking will have 19 an impact on them. You probably saw the pictures where the tower is going. Those green lines run across into the 20 field, that is the strawberry field so they will be looking from that to the tower. When I told t hem of the possible cell 21 tower moving into the field across the street. Not a single one said that is what we need is more towers with cell 22 providers. Everyone started with “here”, you have to be kidding. I am trying to convey to the board the uniquenes s of 23 this area. We are not a search ring, we are a community. My wife and I continue farming this land as long as the good 24 Lord sees fit. I feel very strongly about preserving the rural character and Durham County in general. I currently serve 25 on the Durham County Farmland Protection Board. We meet monthly and try to find ways to preserve rural character in 26 Durham by putting land into conservation easement, development farmer markets to help farmers stay in business, to 27 work with local high schools to promote FFA which is Future Farmers of America. Also served on the Durham County 28 Farm Bureau Board where we do most of the same things including offering agricultural scholarships and funding of 29 FFAs. I worked with Frank Duke who was, at the time, the Durham City/County Planning Director on redoing our area 30 from R20 which is one house per 20,000 square feet to one house per two acres there and preserving more open and 31 rural character. It is obvious that this type of structure is also not consistent with the Orange County Buffer Zone. I 32 think it is obvious that a 129 foot tower with a four and one half foot base sitting in the middle of an open pasture is not 33 consistent with the rural character or harmony of this area. To say this 129 foot monstrosity wi th a 14 foot 34 circumference around the base is anywhere close to a 40 foot wooden telephone pole with a 30 inch circumference… I 35 think it shows how the tower people are grasping at straws to try to convince you that this thing actually fit in the area. 36 Besides, telephone poles are 1930s technology that hopefully will be replaced. Nobody like s to look at them either. 37 This is why utilities are buried in subdivisions and not on poles. No one goes on vacation to look at ugly cell towers and 38 power poles. We go to lakes and parks and beaches to enjoy the natural beauty and get away from such intrusions. 39 Also to say that a 40 foot pine tree on the right of way is going to obscure the view of this 130 foot tower is the same as 40 saying that shrubbery in my yard will obscure the view of my house. I can also assure you that the cell tower will not 41 enhance the value of this area. I would even say that my dad’s home and our farm will be reduced in price. 42 43 Tom Johnson: I object. 44 45 Mark Waller: What is value anyway? Unfortunately the world has attached a financial price to anything we hold in 46 value. I say that is not necessarily true. What is a good day of health worth to you? What is a relaxing afternoon in the 47 country or being able to look across my fields, my barns, my ponds, my cows and not having the top half of this huge 48 metallic structure staring back at me. What is that worth b ecause on the day they did the balloon test, I went home to 49 sit on my porch and I could see the top half of that tower. You know how tall the power poles are, the power companies 50 OC Board of Adjustment – 6/8/2015 Page 39 of 68 chop trees off so they won’t get to the power line which in the winter I am glad they do but just because you have pine 1 trees there, they are not very tall and we can see the top half of those easily. There are only two parties with a financial 2 value in this; T-Mobile cares nothing about me, my family, my way of life or my commun ity or they care about is the 3 money. Getting their piece of the cell tower pie. I have great cell service. We had a speech today about providing cell 4 service. Everybody out here has great cell service, internet access, great television. This is not Mi ssouri where we are 5 trying to get people internet access or something they don’t have. We got it. All this is T -Mobile wanting their piece of 6 the cell tower industry. And the other person is the family that is allowing this to take place who has actuall y chosen 7 money over community. Therefore I strongly urge the board to deny the application for this special use permit and not 8 allow this tower to upset our community. I thank the board for its time. 9 10 Samantha Cabe: Would you say that people go to your f arm to enjoy the surroundings and the natural atmosphere that 11 is on your property? 12 13 Mark Waller: Yes ma’am. 14 15 Samantha Cabe: In your opinion, do you think that’s why people would go to your farm? 16 17 Mark Waller: Without question. 18 19 Samantha Cabe: This is not directed to your strawberries but do you earn money from other operations from you r farm 20 besides the strawberries? 21 22 Mark Waller: We are diversified. We have cows, we sell hay, we bush hog. 23 24 Samantha Cabe: Do you earn money from people coming to your farm for reasons other than strawberries? 25 26 Mark Waller: The education farm tour involved, we have families, we have local schools, local church that come and 27 bring their kids. We start with animals and where their food comes from. 28 29 Jeff Schmitt: Is it an economic venture. Do you charge them? 30 31 Larry Wright: Mr. Waller, were you duly sworn? 32 33 Mark Waller: Yes sir. 34 35 Johnathan Blitz: My name is Johnathan Blitz, my address is 5820 Ten Springs Lane which is about a quarter mile from 36 the proposed site and I have been duly sworn. And I am from Missouri. I can also to the use we make of Mr. Waller’s 37 farm although I would be able to see the proposed tower if it is allowed to be built from my property. I can tell you we 38 take many visitors to our home to Mr. Waller’s farm during strawberry season to pick there and our experience would be 39 severely impacted by it a looming metal monstrosity that is supposed to be built here. I want to point out a couple of 40 things to the board and I’m going to follow learned couns el and mix a little facts and law to cut through some of this and 41 simplify the board’s decision tonight. First, there has not been one witness on the applicant’s side who is an Orange 42 County resident or lives anywhere near that tower site. Even the applicant herself, Leah Bergman is not here but I can 43 testify as to her feelings about this and I believe her state of mind is relevant to this board. 44 45 Tom Johnson: I object. 46 47 Johnathan Blitz: There is an exception to the hearsay rule for admissions. 48 49 Larry Wright: We have already heard from another member that is hearsay, can you please move on. 50 OC Board of Adjustment – 6/8/2015 Page 40 of 68 1 Johnathan Blitz: For the record, I would like to make a record of that, there is a hearsay exception. I read North 2 Carolina Rules of Evidence which would apply in this case and that hearsay exception provides that when a party 3 opponent makes a statement that statement can be entered into evidence in opposition to that party’s position in a 4 proceeding. 5 6 Tom Johnson: I know you are saying party opponent, she is not an applicant. 7 8 Johnathan Blitz: I’ll move on although she is listed as an applicant in the application package. 9 10 Tom Johnson: She is listed as the property owner and the property owner has to sign the application consenting to us 11 pursing as applicant but she is not the applicant. 12 13 Johnathan Blitz: So you don’t have a single Orange County resident in support of this proposed activity and in fact, 14 there has been an attempt to change up the application during the course of this hearing which I would also object to. 15 That change up is changing the application itself by changing the visual appearance of the tower. That is not allowed 16 and it shouldn’t be allowed. You shouldn’t make exceptions on the day of the hearing to allow them to introduce a 17 different proposal and I heard the charge by the member, David Blankfard, I am going to blow down your charge to a 18 couple simple words. You are the consenious of this community. It is your job to consider other factors that just the 19 pure economics of this. Other factors that just the pure bus iness decision that everyone in this room is concerned with 20 because they get to build this and walk away. The expert gets to charge his fee and probably already been paid. And 21 he gets to walk…. 22 23 Tom Johnson: Objection. That was addressed earlier. 24 25 Johnathan Blitz: You have the grounds under the UDO to deny this application. You are under no mandate to approve 26 it just because they come and propose it just because they come and propose it and say well, we can get a slightly 27 better signal from a much earlier uglier location. You don’t have to do that. You have a statutory to deny this and you 28 have the ordinance behind you to deny this and you also have two really critical pieces of evidence. Plus we have 29 heard Mr. Smith that adjoining property owners in the Lake Hogan subdivision actually had a more than one percent 30 lower property value. He tried to dismiss this by saying it is within a margin of error but the fact is that you can look at 31 the base facts and look at the property sales and form your own co nclusions and take into account his bias. Ms. Olive 32 just testified to the degradation of property and there was no objection. 33 34 Tom Johnson: I did object to it and continue objecting to that, she is not an expert and I object to any further argument 35 on that without expert testimony. 36 37 Johnathan Blitz: What this all shows, as somebody who has been around the courthouse for a while, is contempt. And 38 I don’t mean contempt in a way, let’s clap them in iron, we are going to come in here with some experts and we are 39 going to come in here with some outsiders and not have a single person who says I want better cell service. They don’t 40 even have that. They don’t have a single Orange County resident to support this. 41 42 Tom Johnson: I object to that because it violates the statute regarding questioning the business decisions. 43 44 Larry Wright: Sustained. 45 46 Johnathan Blitz: You don’t have to approve every monstrosity. What you have to do is apply the ordinance and you 47 have consider the opinions of the people who are g oing to live with this every day because they are the real experts on 48 an important factor in the ordinance and that is visual impact. The people who know what this area looks like. The 49 people who drive through it every day who live there who come and whe el nursing residents out of the home so they 50 OC Board of Adjustment – 6/8/2015 Page 41 of 68 can see it. We all know and we know this is going to have an unacceptable adverse on our community and we are 1 asking you to deny it. Thank you. 2 3 Jeff Fisher: My name is Jeff Fisher. I am an Orange County resident and I have been sworn. Over the course of 4 hearing all the testimony, I’m tired and it is late. You have heard both sides very well. I am an attorney for the ____ 5 firm and also work, I have a company called Union Places and we specialize in conservation real estate. We also 6 create maps to show how unique a place and the reason I was asked to speak was because I am an Orange County 7 resident and we made this map that illustrates the distance between the two power lines, the incredible Waller F arm, 8 the fact that this is close to Duke Forest. I ask you to think about this as you make this decision…. 9 10 Tom Johnson: I object to that being an inaccurate representation of the tower on that to that degree. The 11 representation that we prepared we are based upon computer generated representation but the representation of the 12 tower is not accurate nor has it been certified. 13 14 Samantha Cabe: Maybe we should ask him how he prepared it. 15 16 Jeff Fisher: It was from the GIS and information shared with us so we just put in information we got…. 17 18 Larry Wright: Why don’t we take a look at it to see what he has to say? 19 20 Jeff Fisher: The other reason I am here to speak is because I specialize, I am a real estate professional, an attorney 21 who handles conservation easement transactions. I help landowners through the process but actually going after the 22 funds that Mr. Waller would go after if he did want to get funds from the Federal Government or State Government to 23 protect his working farm. 24 25 Tom Johnson: I object this to relevance. 26 27 Jeff Fisher: The reason that is relevant is that if Mr. Waller went to apply for his funds like most Orange County 28 residents could if they have a working farm in the rural buffer and there is a cell tower next to it, the likelihood of him 29 being funded goes down. That is one element. You ask about whether or not revenue going to go down because 30 people want a rural experience. He spoke to that and I can speak to that one element of whether or not he could 31 secure those funds for protecting farms. I think, I said I would be brief, so I will close with these comments. This 32 community was the same community to ____ on the ____ when they came forward and that is now the new New Hope 33 Creek Preserve. The point I want to drive home is that we are not a group of NIMBY (Not In My Back Yard). I haven’t 34 heard any of my neighbors say we absolutely don’t need cell phones. Everybody is using cell phones, we understand 35 we need towers, it is the location. I hope you hear that and before you make a de cision you go out to the Waller and 36 walk in his shoes. It is a very important decision. I am disappointed in the company that has presented this because 37 they can other due diligence then all these people would not have had to come out here and stay out h ere until 10 or 11 38 o’clock at night because they had presented a proposal that looked like the tower we don’t see that is within 1,170 of 39 this property I don’t think you would have gotten this response. I think this would have gone through. I don’t have 40 anything against them building their tower in general but the location is wrong. Please do not approve it. Thank you. 41 42 Larry Wright: Mr. Fisher, you said you have an enterprise or company that you work for an organization and you said 43 that Mr. Waller want grants that he would have less chance of achieving funding. 44 45 Jeff Fisher: I used to run a ___ service work with nature conservancy. That was my former career, my profit and we 46 would work with landowners for them to apply for funding for working farms t o permanently protect farmers so my firm is 47 probably one of the few firms in the whole United States that does this. We work with landowners, we have done it 48 across North Carolina. We just did it on the Gates Farm in Mebane. We helped them to secure fun ding on behalf of 49 OC Board of Adjustment – 6/8/2015 Page 42 of 68 the City of Mebane to protect that working farm. We deliver market based solution for land conservation. We don’t say 1 don’t build but here is how you can achieve funding for conservation. 2 3 Larry Wright: You said you would have less chance of getting funding because of the cell tower, what is the connection 4 there? 5 6 Jeff Fisher: They have a criteria, the Federal Farm and Ranch protection program and also the State Agricultural Trust 7 Fund and they go through a list of criteria and try to determine, is this farm in an area that is indeed in a rural and one of 8 the criteria is there commercial development around the farm. Cell tower is commercial development. 9 10 Larry Wright: That would have to be listed on that grant proposal? 11 12 Jeff Fisher: Mr. Waller is on the board that reviews those applications and I have not doubt and I wanted Mr. Waller to 13 help me do this at some point. I will tell him you chance would go do when the character and quality of the adjacent 14 land around you becomes less rural and that is what we are discussing here especially within the ____. One other part 15 I’ll add is the federal government provides tax deductions for protecting conservat ion easements. So if you put a 16 conservation easement on your property you protect a ___ the federal government gives you tax benefits for that. It is 17 the same concept. 18 19 Mark Micol: Would a subdivision have the same impact? 20 21 Jeff Fisher: A subdivision would show that the property is under the threat of development which would increase the 22 funding opportunities but the fact that it is increasingly commercial and not agricultural would also have a double 23 negative if you had a cell tower and a residential development. 24 25 Jeff Schmitt: So the cell tower would actually be the break point because there is two commercial facilities on the 26 corner now anyway, the nursing home and the apartment complex. But funding could be available accept when we put 27 this tower there it would not be? 28 29 Jeff Fisher: My point is if you have one farm that has a ce ll tower next to it and you have another piece of property, 30 then Mr. Waller’s property would lose in that competition. 31 32 Larry Wright: I think the point the community is trying to tell you is that if you go out Erwin Road, you understand as you 33 go north of Erwin, you go into that unique rural buffer. It is a different landscape than when you go south. 34 35 Larry Wright: What is the name of your company? 36 37 Jeff Fisher: Unique Places, LLC. 38 39 Tom Johnson: I think that completes our formal presentation. That is the Keep Kerley Country presentation. 40 41 Michael Harvey: It is 11:00 at night. There are 52 other individuals that have signed up to speak. 42 43 Larry Wright: Does anyone else have anything to present to the board that is novel. Anything that is not hearsay and 44 present evidence that would be paramount to this. 45 46 Beth Bega: My name is Beth Bega, I am with Pruitt Health representing nursing home across the street and I have 47 been duly sworn. Pruitt Healthcare is a licensed certified skill nursing facility not a retirement home at 5935 Mt. Sinai 48 Road in Durham. We have 140 licensed beds. We house residents for both short term residential, rehabilitation to a 49 transition home and we also have long term skilled nursing care for the infirmed and elderly and we have talked to 50 OC Board of Adjustment – 6/8/2015 Page 43 of 68 some of the clients today. They will tell you the reason they chose Carolina Point is they were more comfortable in the 1 rural setting. They like it peaceful, they like sitting on the front porch looking at the horses, the pasture across the road, 2 the farm, the strawberries and employees with tell you that agitated residents are calmed down when they are taken 3 outside to the front porch to watch the horses. Carolina Point has an unobstructed view of the proposed cell tower 4 location. We are number 11 in your packet of the balloon test and this is the picture from that packet actually on our 5 private property looking down our driveway though what is pointed out as the lights are th e actually lights on the 6 building so it’s not giving perspective. One of the three qualifications in Section 5.3.2 of the Unified Development 7 Ordinance says the location and character of the use if developed according to the plans submitted will be in har mony 8 with the areas in which is located. The use is in compliance with the physical development of the county plan as 9 embodied. There is a standard for astatically pleasing and for the 140 residents, their families are 180 plus employees, 10 the place being proposed is definitely out of character for this rural…. 11 12 Tom Johnson: I object to anything with respect to hearsay or what someone else may say. 13 14 Beth Bega: It is not hearsay. 15 16 Tom Johnson: It is hearsay speaking for someone else that is not here to testify. 17 18 Larry Wright: I have to agree with him, I’m sorry. 19 20 Beth Bega: I sat on the front porch and I believe it is an eyesore, not astatically pleasing with the harmony with the 21 character of the rural area and the pleasant situation where it is now. Thank you. 22 23 Michael Harvey: Before summations, I would like the board to recognize Jackie Hicks, a telecommunications consultant 24 so the board can ask questions, the applicant can ask questions and those in opposition can ask questions as well. 25 26 Jackie Hicks: I do want to thank Tom for offering to camouflage this facility because I do have some real concerns 27 because we don’t know what kind of camouflage he means. We haven’t seen information, it wasn’t provided prior to 28 the hearing and it was discussed. Even though he did offer up a monopine, even in his statement or his page he wrote 29 under Tab 21, paragraph 3, he even wrote using a monopine at this location does not make sense because the tower 30 itself is in an open field. I think he is stating that even a monopine is not adequate for this location so I do have 31 concerns about the visual intrusiveness and that is my major thing. I would also like to ask since there is only one other 32 tower in Orange County that T-Mobile is co-located on, does T-Mobile, if this tower is approved, do they have plans to 33 build out service in the county? 34 35 Tom Johnson: I object this goes into business decision. 36 37 Jeff Schmitt: Your capacity with the county is? 38 39 Jackie Hicks: I am their telecommunications consultant. 40 41 Tom Johnson: I object to anything regarding business development because the state statute clearly says that is 42 irrelevant. 43 44 Male: You said you consult with the county, what does that entail? 45 46 Jackie Hicks: Reviewing application basically, all the aspects. The ordinance, everything from co-locations, new 47 towers, modifications, everything. I work hand in hand with Michael. 48 49 Larry Wright: Finish what you were going to say. 50 OC Board of Adjustment – 6/8/2015 Page 44 of 68 1 Jackie Hicks: I am concerned about the visual intrusiveness. 2 3 Larry Wright: As a consultant, you said you were familiar with the UDO so how does this visual intrusiveness, where 4 does it relate to various sections of the UDO. 5 6 Jackie Hicks: Under Section 5.10.8 (a) and (b), the placement and height and quality of wireless telecommunicat ions 7 tower and equipment in such a matter including but not limited to the use of stealth technology or camouflage technique 8 to minimize adverse aesthetic and visual impacts on the land, property, buildings and other facilities adjacent to 9 surrounding in generally the same area as the requested location of such wireless telecommunication support structure 10 which shall mean using the least visible intrusive facility that is not technically or commercially impractical under the 11 facts and circumstances. 12 13 Larry Wright: How do you think this would impact this area, this neighborhood as far as harmony, etc. 14 15 Tom Johnson: I would object to that because I don’t think that is relevant to what she just spoke to stealth. 16 17 Larry Wright: Interpreting the UDO, we have t o do this here, sitting here. Interpreting as a consultant for the county, 18 you are the aware of the UDO and with the statement you’ve made, you just…. 19 20 Tom Johnson: I would object just from the sense that I have not heard anything than she is a consultan t for the county 21 and she has read the UDO but I have heard nothing regarding her qualifications so there is no basis for her to give 22 any…just because she is a consultant. 23 24 Larry Wright: Is my question out of order? 25 26 James Bryan: I’m quite sure what your question is. 27 28 Larry Wright: I just want to know that we are sitting here and have heard testimony on all sides, you have no interest on 29 one side or the other, you are here from the county, everybody is a good guy to us. We have to make a decision so I 30 am asking you a question. You read the UDO I want to know, do you the county and so on, are there adverse effects 31 here? 32 33 Tom Johnson: I object she has not been tendered an expert nor has she given any basis upon which she has the 34 ability. 35 36 Beth Bega: I think visual intrusiveness is huge to the county. I think it is huge … 37 38 Tom Johnson: I object to that because…. 39 40 Samantha Cabe: What are your qualifications and what do you advise the county on. 41 42 Beth Bega: I have been a telecommunications consultant sin ce 2004. 43 44 Samantha Cabe: What do you consult on? 45 46 Beth Bega: I consult on all matters that have to do with UDO , any telecommunications issues. 47 48 Samantha Cabe: Such as? 49 50 OC Board of Adjustment – 6/8/2015 Page 45 of 68 Larry Wright: The AT&T towers that came across the board? 1 2 Beth Bega. Yes sir. I review everything from modifications to co-locations to the towers. 3 4 Samantha Cabe: What do you review it for? 5 6 Beth Bega: I review it to make sure it is in compliance with the ordinance and make sure they keep up with the state 7 and federal laws. 8 9 Mark Micol: Would you be qualified to look at alternative locations? Like what Ms. Hall suggested, the field behind her 10 house on the same property? 11 12 Beth Bega: I don’t think by law you can do that. I think Tom addressed that as far as the location because it really is up 13 for the property owner because when they say they will lease this property to a tower company, they do have the right 14 to say where it is going to go. The neighbors can persuade her. 15 16 Mark Micol: That would be the idea. They would work with the community to find an alternative location that is suitable 17 for their business needs. 18 19 Beth Bega: A lot of times what will happen and it didn’t happen in this case. One of the first steps for a new tower 20 application is a site visit and a lot of applicants will have that site visit with the planner or planning director or whomever 21 represents the community and they will go look at sites but Orange County has sites already designated so there are all 22 kinds of ways to deal with this and to make sure it is more pleasing for the community. 23 24 Samantha Cabe: We all realize you are not the ultimate decision maker whether their application is in compliance but I 25 am asking you ask a consultant for the county who reviews all telecommunications applications that are submitted, is it 26 your opinion that this application meets the criteria for being in harmony with the area in which it will be located if you 27 can give an opinion on that. 28 29 Beth Bega: Tom going to object. No, I don’t think it is in harmony. 30 31 Jeff Schmitt: Did you express an opinion to Mr. Harvey prior to Mr. Harvey providing us with the package of your 32 consideration of all the elements regarding this application? 33 34 Beth Bega: Yes. 35 36 Jeff Schmitt: That statement is where? 37 38 Michael Harvey: It was provided to you as the ____ letter. 39 40 Tom Johnson: My point is the letter does not state what she just stated. 41 42 Beth Bega: It states in here, in my opinion, it complies with the following portions of the County’s Unified Development 43 Ordinance has not been demonstrated by clear and ___ evidence showing that building any other less visually intrusive 44 type of facility other than a tower would serve to prohibit the provision of service. 45 46 Tom Johnson: I would object to that standard because that is not the standard in the state statute. 47 48 Beth Bega: That is my opinion, it doesn’t have to. I’m not stating a law. 49 50 OC Board of Adjustment – 6/8/2015 Page 46 of 68 Tom Johnson: But you are saying that prohibition…saying that is the standard but it’s not. 1 2 Beth Bega: This is my opinion. I am not trying to fight a fed eral or state law here in a recommendation report. This is 3 my recommendation to the county and to Michael Harvey. I am not trying to play attorney. 4 5 Tom Johnson: When did I get this report? 6 7 Beth Bega: Friday. 8 9 Tom Johnson: During the day today when I got your report. 10 11 Larry Wright: Final arguments. 12 13 Tom Johnson: I’m going to summarize where we started. We started with going over the fact that this is a quasi -14 judicial committee. That is important because you have to distinguish what is happening here with the special use 15 permit versus a zoning matter. This Board of Adjustment is constitute d in a different way than a planning board and I 16 heard the name planning board mentioned by some of the opponents. This is a quasi-judicial proceeding where we 17 have to present evidence. That is why we have our experts because we have to present that evidence, we have to 18 bring that board to meet the requirements of the board. In the same fashion, this board has to look at the law and the 19 fact making their determinations and not lay opinions on matters that are not presented by evidence. That is the key 20 difference. As we mentioned earlier there are some key points to be made from the ordinance itself. First, let’s look at 21 the general conditions. For the use will maintain or promote the public health, safety and general welfare. Again, it is 22 accepted in the land use goals that this county has already adopted plus the intent statement that I read in the 23 beginning of the ordinance that this type of service is important to the public health, safety and general welfare of the 24 community. Providing these adequate services. Efficient, effective public safety which includes telecommunications. 25 Expansion of affordable high speed internet access providing reliable notif ication of oversight or emergency access. 26 That is all in the staff report, I didn’t do this. Your staff prepared this and reminded us that those are some land use 27 goals within the ordinance itself. The use will maintain or enhance the value of contagious property. Again, the only 28 testimony from an expert was from our expert about the impact on property values and you cannot do it on the site itself 29 but you can go to another site. There you have got a lattice tower that even by the admission of the oppone nts own 30 attorney with the ___ if visible from some of those locations and the comparison was between those lots where it was 31 visible and those where it was not and the expert came to the conclusion there was not difference in those values. That 32 the values would be maintained and not be harmed. Spent a lot of time here about harmony. I do want to speak about 33 what state law says about harmony and the staff in its report alludes to this as well on page 58. There are concerns 34 expressed in the telecommunication towers are not appropriate for development in the rural buffer zoning district. The 35 thing is under your ordinance towers are a permitted use subject to the special use permit in the rural buffer district. 36 That is what North Carolina law says. It is presumed to be harmony if the jurisdiction allows it as a use in the district. 37 This is allowed as a use in the district therefore, by definition it is in harmony and all you are hearing is that it is in a 38 rural buffer but the commissioners by opting the U DO said in a rural buffer, it is appropriate but carry it a step further, 39 look at the character of this area and you look at the fact there is a ___ facility across the street, there is a school 40 across the street, there is a large one story apartment build ing across the street. There are major subdivisions that are 41 in very close proximity us like a lot of areas you see around the area and other parts of the country. The growth is 42 coming, it is urban growth, this is an urban area that is growing into the r ural area. That is just the way it is. It’s not the 43 tower that is doing that. It is the subdivisions that have come, it’s the subdivision, the school, the nursing center that 44 has come to this area. You know what is more important to me. You have a ver y experienced staff that has been very 45 involved in this whole process. We have gone back and forth with correspondence to get to the point getting the 46 answers so far as us showing how it meets the ordinance. We have been back and forth with Mr. Harvey on numerous 47 occasions. The key point to me is on page 124 and he has got years of experience but on page 124 this is what is said 48 in his report. Staff has reviewed the application, the site plan and all supporting documentation and has found that the 49 applicant complies with the specific standards with the required regulations as outlined in the UDO. I didn’t not see that 50 OC Board of Adjustment – 6/8/2015 Page 47 of 68 CTS report until today. This has been going on for months. It makes it hard for me to adjust that is why I adjusted at 1 hearing tonight to say if I didn’t get the report until today it is hard for me to address the stealthing issue as proactively if 2 that is the consultant’s concern. That is why I came in tonight with respect to stealthing. One is to do the close mount 3 antennas on a single pole or do a monopine. That is stealthing that is recognized with your ordinance and certainly with 4 Durham County’s cause they require that so we are will to accept that. What are those to stealthing but again, I didn’t 5 know about that concern from CTS until today. There was a lot of mention about the top half of the tower and again, all 6 that was viewable from the Lake Hogan Farm’s property. Same comments and it was not the adverse impact. The 7 bottom line is we agree with what your staff said. We agree that the statute says that you have look at the search ring 8 and what is available in the search ring. I am not open to questions about the business of the applicant. We have 9 presented ample evidence as to why the existing tower within the search ring will not work it is just too short and too low 10 in elevations. Higher the elevation is the tower that would work better and meet the objectives not work better but meet 11 the objectives that T-Mobile has located otherwise it won’t meet their objectives and it doesn’t help and that is certainly 12 in keeping with the ordinance and that is where the facts lie and that is what the experienced staff says and I act that 13 you rule based on the fact not the emotion but you have to look at the facts and the law that is bef ore you and if you 14 really look at that in terms of the expert testimony, you have no choice but to approve the application as presented. 15 Thank you. 16 17 Beth Bega: Can I say something? 18 19 Tom Johnson: I thought we were through… 20 21 Beth Bega: It is just a statement that you made. You knew that …He didn’t just find this out. 22 23 Bob Hornik: I am aware of the time. A few points. First, the board can ask Mr. Harvey exactly what he said and what 24 he meant by _____ which Mr. Johnson just talked about. About three points I want to make. First, I am looking at 25 Section 5.10.8(b)3.0 of the Ordinance and it says that all applications shall contain a demonstration that the wireless 26 support structure ___ as to have the least visually intrusive effect reasonably possible and thereby have the least 27 adverse visual affect on the environment and its character, on existing vegetation and on the residences and the area 28 of the telecommunications tower. May I submit to the board that on that criteria alone, this board can and should deny 29 the application. The application had not been submitted complies with that ordinance. It is a requirement of the 30 ordinance. You don’t have to already waive it. They have to make that demonstration and they did not. I have my 31 proposed finding I will hand them out to the board. 32 33 Michael Harvey: For the record, this will be Exhibit 2. 34 35 Bob Hornik: These are my proposed findings based on the evidence in the record and what has been demonstrated to 36 the board tonight. I agree to a certain extent with Mr. Johnson that says when there is case law out there that says 37 when a use is allowed in a district for a conditional permit or special use permit that is considered to be harmonious with 38 the district but what the case law goes on to say is that ______ provided that the application otherwise complies with all 39 the other requirements and that is where this application falls apart. It falls apart on the issue of complying otherwise 40 with the requirements of the ordinance. I can go through a laundry list of provisions in the ordinance that I submit have 41 not been satisfied by the application, the applicant and the presentation tonight. I won’t for the sake of time go through 42 and reach each of the sections of the ordinances but summarized in my proposed findings. I would ask the board to 43 consider that. I would ask the board to consider Section 5.10.8 (B) 1 (a) and (b) of the UDO which are the overall policy 44 and desired goals when you listen or review the evidence that has presented and ___ the arguments that were 45 presented you have to consider them in context when you do the prism of ____ policies so paragraph B says the 46 placement height and quantity of wireless communication towers and equipment all applicants are required to adhere to 47 the following overall policies and goals. The overall policies aren’t goals for SUP for wireless communication s upport 48 structures shall be promoted, encouraging wherever possible the following: the placement height and quantity of 49 wireless communication towers such a manner but not limited to the use of stealth technology or camouflage 50 OC Board of Adjustment – 6/8/2015 Page 48 of 68 technology techniques to minimize adverse aesthetics and visual land, property, buildings and other facilities adjacent 1 to, surrounding and generally the same area as the requested location in such wireless telecommunication support 2 structure. I ask this board to please exercise and apply some common sense in this application. This is not a 3 complicated application when you look at the facts and look at where it stands in the ordinance. This applicant has not 4 satisfied the requirements of the ordinance with respect to at least the issu e of being the least visually intrusive location 5 of the tower. You are not obligated to allow T -Mobile to build its optimal site so they can argue about that if they want. 6 You are not required to let them build the optimal; you are required to apply stan dards in your ordinance. They have 7 not satisfied the ordinance. This last one has to do with the property value question. 8 9 Michael Harvey: I’ll put it in Exhibit 3. 10 11 Bob Hornik: The case is American Towers versus the Town of Morrisville in 2012 North Carolina Court of Appeals. I 12 would direct the board’s attention to look at the facts of the case but when we get to the last two pages which deal with 13 the impact on property value issue. The analysis of this court and the fact s that are presented to the court as the facts 14 that are presented to you. The applicant in that case, the petitioner, presented expert testimony. The opposition did 15 not, the court looked at that and said that the y responded that the petitioner responded found that the petitioner’s ____ 16 on the issue of the proposed telecommunication was substantially ____ value of adjoin property to be deficient in four 17 areas. One, report that _____. Two, the subdivision, the cell tower was in place before the neighboring homes were 18 built as opposed to the case in here. Three, the report denied ___ the effect of possible evaluation of property and four, 19 the report did not take into account any poten tial loss of value due to the loss of _____ the tower rising above the 20 adjoining residential neighborhood. In the end, the Court of Appeals affirmed the Superior Court’s decision which 21 affirmed the denial of a special use permit for a cell tower as in the case of American Towers versus Morrisville. And 22 they decided to uphold the Court of Appeals opinion. The same proposition. So you don’t to accept their expert 23 testimony as ____ if you don’t want to. I would suggest to the board that you shouldn’t accept that testimony. In 24 addition to all the various specific provisions of the UDO that I submit the applicant did not satisfy, the applicant did not 25 ____on evidence to satisfy the second and third prongs on the general findings that you have to make to ___. They did 26 not prove to you that this proposal would maintain or enhance the value of adjoining property and they did not prove to 27 you that this proposal if built as proposed would be compatible and harmonious with the uses in the area and on those 28 two grounds I would ask this board to deny the application. Thank you. 29 30 Larry Wright: I would like to thank both counsels and are there any questions that the board has? 31 32 Jeff Schmitt: Do you wish to proceed until we have deliberation and finding tonight or ar e we going to adjourn. 33 34 Larry Wright: We are not going to adjourn. We are going to go through this. 35 36 Karen Barrows: Michael, on page 141, there is a note from the health department, has this request been met? 37 38 Michael Harvey: They are proposing a su bdivision and that note is to remind time and ultimately you all of the 39 testimony that if there is a subdivision of property we will have to evaluate the no expected impact statement. 40 41 Karen Barrows: This is not considered subdividing the property? 42 43 Michael Harvey: No. This is not going to be a subdivision. 44 45 Jeff Schmitt: Can I ask the applicant/petitioner of consideration for other sites within the two mile circle. Is that an 46 appropriate thing or a business question? 47 48 James Bryan: There are some factors that are going to be business decisions and some that or not. You can’t ask 49 them about their plans for expanded service but there is a submittal requirement in our UDO that says hey you have to 50 OC Board of Adjustment – 6/8/2015 Page 49 of 68 show us all the towers in two miles. Then they have to e valuate within their search ring so you can ask them about 1 that? 2 3 Tom Johnson: I would object in so far that we would be reopening the record after the summation of the parties. 4 5 Jeff Schmitt: Within the search ring, how many other sites did you consider? 6 7 Tom Johnson: Within the search ring, the search ring is a half mile radius. Typically, I think there are three location 8 presented for consideration and they looked at all factors in terms of the locations and heights. For instance, the 9 American tower sites, we did search ring so they looked at that and examined that with the respect but it not work with 10 the height and the location issue because it was so low so multiple sites were looked but the thing that generates all 11 this, you look with their search ring and determine their sites and you talk to property owners like when you are trying to 12 negotiate a contract to purchase a real estate so you have to determine; number one you have to find a willing person 13 to do it then number 2, you have to have that person reach an agreement with that person where it would be located on 14 their property and there are financial considerations too. You go through a process to do that. It was determined based 15 upon all these factors that this was the best site to present so that is really where we are. 16 17 Male: None of this is in the record before as generated even in the application or hearing tonight and I move to strike. 18 19 Tom Johnson: I was just responding to the question. 20 21 Larry Wright: This is the time when the board can ask questions and we do. 22 23 Male: If you can reopen or new testimony. 24 25 Larry Wright: I have not closed the public hearing. 26 27 Jeff Schmitt: Did you make an offer to locate the tower on another piece of property within the ½ mile. 28 29 Tom Johnson: I can’t address that specifically… there are four others considered. 30 31 Jeff Schmitt: The first lady, Mrs. Hall, pointed us to this large piece of property who own this site located if its approve d 32 in the back. It is further away and surrounded by trees. Yes there are other houses. Did you request of her to 33 potentially locate this tower back there? 34 35 Tom Johnson: All I can say is that we have an agreement with Mrs. Bergman and this is where the future site. 36 37 Larry Wright: I have a question about the buf fer. I see long leaf pines, is there an intent to put a buffer around this 38 thing? It’s a 20 ft. buffer but where is it? 39 40 Tom Johnson: It is around the outside of the fence as required by the ordinance. 41 42 Larry Wright: But the fence adjoins someone else’s property. 43 44 Tom Johnson: No the fence around the compound of the structure doesn’t go that far. 45 46 Michael Harvey: Reviewed Findings. 47 48 Samantha Cabe: The standard, the search ring utilized in finding the proposed site, what you are looking at there is 49 only that they submitted the search ring? 50 OC Board of Adjustment – 6/8/2015 Page 50 of 68 1 Michael Harvey: They did present the search ring. Tom and I have a difference of opinion. I would say he did submit it 2 and he did submit a response to my original concern. 3 4 Samantha Cabe: Can you tell me where your original packet was documented in our packet. 5 6 Michael Harvey: It was in the original letter we wrote on March 30, the questions we asked were basically were 7 basically was he identifying every tower within the identifiable search ring where the dist ance properly referenced, were 8 the radio points actually being provided as required and did the search ring really yield the viable number of properties 9 that ought to be considered. Our ultimate questions that Tom and I had discussions offline where can y ou truly 10 discount the Kerley Road existing site and obviously the testimony here this evening as we state in the abstract itself 11 the argument provided by the RF engineer is the tower was too low and that was the whole testimony. On page 137, 12 the May 15 letter, we had suggested that they provide addition assessment on the narrative on the Kerley Road site. 13 Tom’s response was that they had chosen to add additional documentation in their Tab 26 and they would handle 14 additional testimony here this evening to address my concern about search ring issues. And then obviously he quotes 15 from the general statute as well. Part of the concern is that I am dredging on a business development component of 16 this and he believes I am exceeding my authority. Continued reviewing Findings. 17 18 Tom Johnson: I accept the conditions so I don’t have any objections to the conditions that have been listed. We are 19 find using the same design of the tower down the road if we using the monopine. 20 21 Larry Wright: Hearing none. I will close the public hearing. Are there any comments the board want to say? 22 23 Karen Barrows: I wanted to say that submitting what is required for the SUP in genera l was quite helpful so thank you 24 Michael. 25 26 27 OC Board of Adjustment – 6/8/2015 Page 51 of 68 1 2 FINDINGS OF THE ORANGE COUNTY BOARD OF ADJUSTMENT 3 PERTAINING TO A REQUEST SUBMITTED BY 4 SKYWAY TOWERS LLC / T-MOBILE 5 REQUESTING A CLASS B SPECIAL USE PERMIT APPROVAL 6 FOR A TELECOMMUNICATION TOWER AT 7 5022 Kerley Road (PIN 0801-15-4533) 8 9 As required under Section 5.2 Table of Permitted Uses of the Orange County Unified Development 10 Ordinance (UDO), a Class B Special Use Permit is required for the erection of a telecommunication 11 tower, over 75 feet but under 200 feet in height, reviewed and acted upon in accordance with the 12 provisions of Section 2.7 of the UDO. Such permits shall comply with general and specific standards as 13 set forth in Section(s) 5.3.2 and 5.10.8 of the UDO. 14 15 Section 5.3.2 (A) (2) of the UDO requires written findings certifying compliance with the following: 16 17 (1) The use will maintain or promote the public health, safety and general welfare, if located 18 where proposed and developed and operated according to the plan as submitted; 19 20 (2) The use will maintain or enhance the value of contiguous property (unless the use is a 21 public necessity, in which case the use need not maintain or enhance the value of 22 contiguous property); and 23 24 (3) The location and character of the use, if developed according to the plan submitted, will 25 be in harmony with the area in which it is to be located and the use is in compliance with 26 the plan for the physical development of the County as embodied in these regulations or 27 in the Comprehensive Plan, or portion thereof, adopted by the Board of County 28 Commissioners; 29 30 In addition, the Board shall make findings certifying that the application is complaint with the following 31 specific standards: 32 33 (1) Specific standards for the submission of Special Use Permit applications as outlined 34 within Section(s) 2.2 and 2.7 of the UDO, 35 (2) Specific regulations governing the development of telecommunication tower as set forth in 36 Section 5.10.8 (A) through (B) of the UDO, 37 (3) Section 5.3.2 (B) relating to the method and adequacy of the provision of: 38 a. Sewage disposal facilities, 39 b. The adequacy of police, fire, and rescue squad protection, and 40 c. The adequacy of vehicular access to the site and traffic conditions around the site 41 (4) The general findings outlined within Section 5.3.2 (A) (2). 42 43 Listed below are the findings of the Orange Planning staff regarding the application in question. The 44 findings have been presented by Article and requirement to assist the Board of Adjustment in its 45 deliberations. 46 OC Board of Adjustment – 6/8/2015 Page 52 of 68 REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA APPLICATION COMPONENTS Proper forms 2.2 Application (TAB 1 of binder) Yes Fees paid 2.2.4(D) Staff Testimony/Application (TAB 2 of binder) Yes Full description of use  Location  Appearance  Operational characteristics 2.7.3(B)(1) Application (Application Binder and Site plan) Yes Owner Information 2.7.3(B)(2) Application (TAB 3 of binder and Site plan) Yes Information needed for Use Standards 2.7.3(B)(3) Application (TAB(s) 3, 4,5 of binder and Site Plan) Yes Site Plans (10 copies for Class B; 26 for Class A) 2.7.3(B)(4) Application/Staff Testimony (Site plan) 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 (TAB 5 of binder) Yes Elevations of all structures 2.7.3(B)(7) Application (Site plan) Yes 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. N/A Method of Debris Disposal 2.7.3(B)(9) Application (Site plan) Yes Development Schedule 2.7.3(B)(10) Application (Site plan) Yes Extended Vesting Request 2.7.3(B)(11) Not requested N/A OC Board of Adjustment – 6/8/2015 Page 53 of 68 REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA NOTIFICATION REQUIREMENTS Public Notice  Date  Time  Place 2.7.5(a) Abstract (Attachment 2) 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 2) and Staff Testimony Yes Sign Posting on Property (at least 10 days prior) 2.7.5(c) Staff Testimony posted sign on May 28, 2015 Yes Mailed Notice  Certified mail  All adjacent property owners (within 1000 ft.)  Not less than fifteen days prior 2.7.5(d) Abstract (Attachment 2) Yes OC Board of Adjustment – 6/8/2015 Page 54 of 68 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) Abstract (Attachment 4) Both Environmental Health and Solid Waste have indicated they have no concerns. Conditions are recommended to require Solid Waste Permit as part of development process. 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 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 development of the telecommunication facility. Yes OC Board of Adjustment – 6/8/2015 Page 55 of 68 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 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) Application (TAB(s) 3, 5, 6, 7, 10 through 20), Site plan, and Applicant Testimony Yes Elevation drawings and color renderings of the proposed tower. 5.10.8 (A) (1) (c) Application (TAB(s) 9 and 12), Applicant Testimony, and Site plan Yes A signed statement from the applicant certifying that the proposed telecommunication support structure: (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. 5.10.8 (A) (1) (d) Application (TAB 6), Applicant Testimony, and Site plan OC Board of Adjustment – 6/8/2015 Page 56 of 68 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) Application (TAB(s) 7 and 9), Applicant Testimony, and Site plan Yes A statement indicating how the proposed tower will minimize visual intrusiveness to surrounding properties in the area. 5.10.8 (A) (1) (f) Application (TAB(s) 21 and 22), Applicant Testimony Yes 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) Application (TAB(s) 8 and 9), Applicant Testimony, and Site plan Yes The existing cell sites (latitude, longitude, power levels) to which this proposed site will be a handoff candidate. 5.10.8 (A) (1) (h) Yes Propagation studies of the proposed site and showing all adjoining planned, proposed, in- service or existing sites. 5.10.8 (A) (1) (i) Application (TAB(s) 10 and 26), Applicant Testimony, and Site plan Yes The search ring utilized in finding the proposed site. 5.10.8 (A) (1) (j) Application (TAB(s) 10 and 26), Applicant Testimony 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) Application (TAB 11), Applicant Testimony Yes OC Board of Adjustment – 6/8/2015 Page 57 of 68 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) Application (TAB 12), Applicant Testimony Yes The frequency, modulation and class of service of radio or other transmitting equipment. 5.10.8 (A) (1) (m) Application (TAB 13), Applicant Testimony Yes The maximum transmission power capability of all radios, as designed, if the applicant is a cellular facility. 5.10.8 (A) (1) (n) Application (TAB 14), Applicant Testimony Yes The actual intended transmission and the maximum effective radiated power of the antenna(s). 5.10.8 (A) (1) (o) Application (TAB 15), Applicant Testimony Yes The direction(s) of maximum lobes and associated radiation of the antenna(s). 5.10.8 (A) (1) (p) Application (TAB 16), Applicant Testimony Yes Certification that the NIER levels at the proposed site are within the threshold levels adopted by the FCC. 5.10.8 (A) (1) (q) Application (TAB 17), Applicant Testimony Yes Certification that the proposed antenna(s) will not cause interference with other telecommunications devices. 5.10.8 (A) (1) (r) Application (TAB 18), Applicant Testimony Yes A written affidavit stating why "the proposed site is necessary for their communications service". 5.10.8 (A) (1) (s) Application (TAB(s) 19 and 26), Applicant Testimony Yes 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) Application (TAB 20), Applicant Testimony Yes OC Board of Adjustment – 6/8/2015 Page 58 of 68 1 REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA STANDARDS for Telecommunication Facilities (continued) Applications for the co-location of antennas 5.8.10 (A) (2) The proposal is for a new tower, not for the co-location of equipment. The application is not proposing any co-locations at this time. 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 (TAB(s) 21 and 22), Applicant Testimony Yes Yes Balloon Test 5.8.10 (B) (2) Application (TAB(s) 21 and 22), Applicant Testimony, Abstract (Attachment 4), Staff testimony. Yes Submittal of site plan 5.8.10 (B) (3) (a) Application, Site plan, Applicant Testimony, Staff testimony 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) Application (TAB(s) 11, 12, 15 ), Applicant Testimony, Site plan. Yes A Landscape and Tree Preservation Plan 5.8.10 (B) (3) (c) Application, Site plan, Applicant Testimony 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) Application (TAB(s) 3, 10, 26), Applicant Testimony Yes 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) Application (TAB 27), Applicant Testimony Yes OC Board of Adjustment – 6/8/2015 Page 59 of 68 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) Application (TAB 28), Applicant Testimony. Yes 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 (TAB 5) 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) Application (TAB(s) 22 and 29), Applicant Testimony, Abstract. Yes Evidence that the balloon test requirement has been met. 5.8.10 (B) (3) (i) Application (TAB 22), Abstract (Attachment 2) Yes A notarized statement that the sign posting requirement has been met. 5.8.10 (B) (3) (j) Staff testimony Yes Photographs of a clearly visible balloon floated at the proposed tower location as well as photographs with the proposed tower and associated antennas superimposed upon them showing what the proposed tower will look like. 5.8.10 (B) (3) (k) Application (TAB 22) Yes 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) Application (TAB 6) and Applicant Testimony Yes Environmental Assessment Analysis and a Visual addendum. 5.8.10 (B) (3) (m) Environmental Assessment is not required. Application (TAB 22). N/A OC Board of Adjustment – 6/8/2015 Page 60 of 68 REQUIREMENT UDO SUPPORTING EVIDENCE Staff BOA STANDARDS for Telecommunication Facilities (continued) Visual Impact Assessment requirements 5.8.10 (B) (3) (n) Application (TAB 22), Applicant Testimony. Yes 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) Application (TAB(s) 19, 21, and 22), Applicant testimony 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) Application (TAB 7), Applicant Testimony Yes Proposed telecommunications equipment planned cannot be accommodated on an existing wireless support structures 5.10.8 (B) (4) (a) Application (TAB 7), Applicant Testimony Yes Location of Wireless Support Structures 5.10.8 (B) (4) (b) Application inclusive with a specific statement contained in TAB(s) 25 and 33, Applicant Testimony, Abstract. The applicant is not by-passing a ‘higher priority’ site with the proposal to erect a tower on this property. There are no higher priority sites in the area where a tower can be located. Yes Fall zone setbacks of 110% of tower height (not including lighting rod) 5.10.8 (B) (4) (c) Site plan Yes Access 5.10.8 (B) (4) (d) Site plan. Access shall be off of Mt. Sinai Road. Yes OC Board of Adjustment – 6/8/2015 Page 61 of 68 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, Site plan, Applicant Testimony. 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) Applicant testimony (acknowledgement of condition) Application (TAB 22) Yes 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) Site plan, Applicant Testimony 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) Site plan Yes All utilities at a facility site shall be installed underground and in compliance with all Laws, ordinances, rules and regulations of the County. 5.10.8 (B) (4) (i) Site plan, Applicant Testimony Yes 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 inclusive, Site plan Yes Fences and Walls 5.10.8 (B) (4) (k) Site plan. Yes Tower is structurally designed to support additional users. 5.10.8 (B) (4) (l) Application inclusive Yes To minimize the number of antenna arrays the County may require the use of dual mode antennas. 5.10.8 (B) (4) (m) Not applicable for this project N/A OC Board of Adjustment – 6/8/2015 Page 62 of 68 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) Site plan, Application inclusive 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) Applicant testimony (acknowledgement of condition) Language within application indicates proposed monopole will be constructed of galvanized steel, grey in color. Yes Antennas shall be flush mounted 5.10.8 (B) (4) (p) Site plan, Applicant Testimony Yes Lighting 5.10.8 (B) (4) (q) Not applicable. Tower is not required to be illuminated. 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) Not applicable. Area does not contain historic sites (i.e. officially designated), designated scenic roads (NC DOT), and is not located in a major view corridor N/A 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) Applicant acknowledges condition via testimony Yes Abandoned structures shall be removed with 12 months. 5.10.8 (B) (4) (t) Applicant acknowledges condition via testimony Yes OC Board of Adjustment – 6/8/2015 Page 63 of 68 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) Condition of approval 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) Applicant acknowledges condition via testimony and information in TAB 41. Condition of approval Yes Warning signage on compound fence 5.10.8 (B) (4) (w) Site plan, Applicant Testimony 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) Condition of approval Yes Liability Insurance 5.10.8 (B) (6) Application (TAB 43) N/A DRAFT OC Board of Adjustment – 6/8/2015 Page 64 of 68 1 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  Narrative (TAB 3)  Impact Analysis (TAB 21)  Balloon Test (TAB 22)  Site Plan N/A 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  Impact Analysis (TAB 21)  Site Plan Yes 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  Narrative (TAB 3)  Impact Analysis (TAB 21)  Balloon Test (TAB 22)  Site Plan Yes 2 3 Larry Wright: On page 111, there is the application of components with its supporting evidence and we can 4 comfortably go off this for page 111 and 112. 5 6 MOTION made by Samantha Cabe that for the recommendations we just reviewed with Mr. Harvey up to page 123 7 that we adopt the 3 staff recommendations that were made and only address the ones that were left open for our 8 decision. Seconded by David Blankfard. 9 VOTE: Unanimous 10 11 Jeff Schmitt: The character of the property is changing it is not all rural anymore. There is a commercial venture, a 12 commercial complex, a commercial venture as a nursing home. It is changing; does that affect the visual 13 intrusiveness? I don’t know. 14 15 Larry Wright: Every place is changing. But is this change, does it follow th e intent of what the UDO is really trying to 16 protect citizens in Orange County or to protect the county grow in development. 17 DRAFT OC Board of Adjustment – 6/8/2015 Page 65 of 68 1 Samantha Cabe: Question to the attorney. Do we have to fill in these findings or only the ultimate requirements and 2 make findings that support the ultimate findings or do we have to go through all these things that staff has 3 recommended. 4 5 James Bryan: You have to make findings and conclusions for all of these but what the board has done in the past 6 have lumped all the submittal on es together with one comprehensive finding that was in the application packet that 7 was testified by the applicant staff testified to it. That is where all the submittal ones together. You have got either 8 the three general standards, harmony, appraisal and …. 9 10 Samantha Cabe: With these submittal standards, all we are looking for is did they address this either in their 11 application or testimony. We are not evaluating at this point whether they did minimize the visual intrusiveness. We 12 are just saying they addressed it in their application and testimony? 13 14 Jeff Schmitt: It is their opinion. 15 16 Samantha Cabe: I just don’t want us to weigh something we don’t have to weigh. 17 18 James Bryan: I would actually interpret submittal to be submittal. 19 20 Larry Wright: Correct. 21 22 MOTION made by Samantha Cabe to adopt the staff findings and add findings of yes to all the unanswered 23 questions by staff. Karen Barrows seconded. 24 VOTE Unanimous 25 26 Larry Wright: On page 123, Section 5.3.2 (A) (2) (a). 27 28 MOTION made by David Blankfard that the use will maintain or promote the public health, safety and general welfare 29 if located where proposed and developed and operated according to the plan as submitted and the impact analysis 30 and site plan. Seconded by Jeff Schmitt. 31 VOTE: 3-2 (Larry Wright and Samantha Cabe opposed) 32 33 Larry Wright: On page 123, Section 5.3.2 (A) (2) (b). 34 35 MOTION made by Samantha Cabe to find the applicant failed to meet its burden with regard to proving that the use 36 will maintain or enhance the value of contagious property and I based that motion on the fact that the impact analysis 37 was submitted and evaluated only residential properties in a very regulated subdivision in Orange County and did not 38 consider any impact on a farming operation. It did not address any impact on a nursing home or another commercial 39 facility that might be in the area and also none of the comparables submitted in the Impact Analysis to locate the 40 tower in the front yard or in the direct view of any of the comparable properties. Seconded by Jeff Schmitt. 41 VOTE: 4-1 (David Blankfard opposed) 42 43 Larry Wright: On page 123, Section 5.3.2 (A) (2) (c). 44 45 MOTION made by Karen Barrows that the location and character of the use will not be in harmony with the area in 46 which it is to be located. 47 Friendly amendment made by David Blankfard stated based on the photos provided during the balloon test and th e 48 applicant has showed the tower in its location. 49 DRAFT OC Board of Adjustment – 6/8/2015 Page 66 of 68 Friendly amendment made by Jeff Schmitt stated the proximity that the tower will be in the neighboring property 1 owned by Ms. Hall. Motion seconded by David Blankfard. 2 VOTE: Unanimous 3 4 RECOMMENDATION: 5 6 While staff has received numerous comments from local residents and property owners indicating 7 they do not believe the proposed facility complies with the provisions of Section 5.3.2 (A) (2) 8 inclusive, no specific evidence has been submitted for review establishing the grounds for making a 9 negative finding on the general standards as detailed herein. These standards include maintaining or 10 promoting the public health, safety, and general welfare, maintaining or enhancing the value of 11 contiguous property, the use is in harmony with the area in which it is to be located, and the use being 12 in compliance with the general plan for the physical development of the County. 13 14 Staff has reviewed the application, the site plan, and all supporting documentation and has 15 found that the applicant complies with the specific standards and required regulations as outlined 16 within the UDO 17 18 Provided the Board of Adjustment finds in the affirmative on the specific and general standards as 19 detailed herein, and no evidence is entered into the record demonstrating the applicant has either: 20 a. Failed to meet their burden of proof that the project complies with the specific development 21 standards for a telecommunication facility, or 22 b. Fails to comply with the general standards detailed within Section 23 5.3.2 (A) (2) of the UDO, the Board could make an affirmative finding on 24 this application. 25 In the event that the Board makes an affirmative finding, and issues the permit, staff recommends the 26 attachment of the following conditions: 27 28 1. The height of the tower shall not exceed a height of 129 feet above pre-29 construction grade (125 ft. tall tower with a 4 ft. lighting pole at the top for a 30 combined total height of 129 ft.) as detailed within the approved application 31 package as reviewed and acted upon by the Board of Adjustment at their June 8, 32 2015 meeting. 33 2. Existing vegetation, as detailed on the approved site plan reviewed and acted 34 upon by the Board of Adjustment at their June 8, 2015 meeting, shall be 35 maintained as indicated in perpetuity. 36 3. The facility and its equipment shall comply with all federal, state and local 37 emission requirements. 38 4. The electro-magnetic radiation levels shall be maintained compliance with all 39 federal, state and local requirements, including the requirements of the Federal 40 Communications Commission regarding emission of electromagnetic radiation. 41 Within 30 days of installation of equipment on the tower, and within 30 days 42 of the installation of any additional equipment in the future, the tower owner shall 43 provide documentation of emission levels in relation to FCC standards to the 44 County for review. In addition, the tower owner must provide documentation of 45 emission levels within five working days if so requested by Orange County. Orange 46 County may make such requests at any time, not to exceed 2 times per year. 47 DRAFT OC Board of Adjustment – 6/8/2015 Page 67 of 68 5. Two ten pound 2-A:20-B:C dry chemical portable fire extinguishers shall be 1 installed at the site at a conspicuous location for use during an emergency event. 2 3 6. As required within Section 5.10.8 (A) (1) (g) of the UDO, the applicant shall be required 4 to provide a final copy of the installed foundation design including a geotechnical 5 sub- surface soils investigation, evaluation report, and foundation recommendation 6 for the proposed wireless support structure prior to the commencement of land 7 disturbing activities associated with the construction of the telecommunication facilities. 8 7. The applicant shall obtain a driveway permit from the NC Department of 9 Transportation approving the driveway access for the project off of Mt. Sinai Road. 10 8. Final assignment of a street address shall be completed by Orange County Land 11 Records prior to the issuance of any permit authorizing land disturbing activity on 12 the property. 13 9. The applicant shall obtain all necessary development permits from the County prior 14 to the initiation of and land disturbing activity associated with the construction of the 15 telecommunication facilities including, but not limited to: 16 a. Building Permit, 17 b. Erosion Control/Stormwater Management Permit, 18 c. Solid Waste Management Permit, and 19 d. Zoning Compliance Permit. 20 As part of the review of proposed construction drawings, the Orange County 21 Services Department shall review and comment upon final submitted construction 22 drawings to determine compliance with State Fire Code regulations. 23 10. Any proposed co-location of antenna on this tower shall be reviewed, acted upon, 24 and installed in accordance with the provisions of the UDO. 25 11. A co-location site shall be offered to the County for the placement of antenna in 26 support of local emergency communication needs. 27 12. The applicant shall submit all necessary bonding/financial security documents to 28 the County Attorney’s office for review and approval guaranteeing the removal of the 29 tower in the event it is abandoned or unused for a period of 12 months. A cost 30 estimate shall be provided by a qualified contractor. The amount of the security shall 31 be 110 percent of the estimate. This must be completed before building permits are 32 issued. 33 13. Telecommunication tower owners shall submit a report to the County Inspections 34 Division certifying structural and electrical integrity upon completion of the initial 35 construction and at intervals as specified within the UDO. 36 14. Inspection records shall be kept by the tower owner and made available upon request 37 to the County Inspections Division during regular business hours. Inspections shall 38 be performed as specified within the UDO. 39 15. In those cases where an inspection is required, which is not performed by 40 Orange County Inspections, the applicant is required to notify the Planning Department 41 and any applicable County telecommunication consultant of the inspection and its 42 results. 43 DRAFT OC Board of Adjustment – 6/8/2015 Page 68 of 68 16. Nothing associated with the approval, development or use of the property in support 1 of the proposed telecommunication facilities shall be construed as impacting the use of 2 the property for single-family residential or horse/farm activities with the exception of 3 preserving existing foliage as detailed within Condition 2. 4 Expansion of same shall not constitute a modification of the special use permit as 5 detailed within the UDO requiring a re-review of the project by the Board of Adjustment. 6 17. The County’s telecommunications consultant shall issue a final Certificate of 7 Completion upon the completion of a final inspection of the constructed 8 telecommunication facilities. Commercial service cannot be provided/initiated until this 9 final Certificate is completed and issued. 10 18. The Special Use Permit will automatically expire within 12 months from the date 11 of approval if the use has not commenced or construction has not commenced or 12 proceeded unless a timely application for extension of this time limit is approved by 13 the Board of Adjustment. 14 19. If any condition of this Special Use Permit shall be held invalid or void, then this 15 Special Use Permit shall be void in its entirety and of no effect. 16 17 18 MOTION made by Samantha Cabe to deny this special use permit submitted by Skyway Towers LLC because they 19 failed to prove by clear convincing evidence the specific standards required for approval per the Orange County 20 UDO. 21 22 James Bryan: There was substantial evidence contrary to it or for the value that they fail to provide the substantial 23 evidence. You may say they provided substantial evidence _____ 24 25 MOTION made by Samantha Cabe to deny the application by Skyway Towers LLC on the basis that they did not 26 meet their burden to provide substantial evidence that would support approval under the Orange County Unified 27 Development Ordinance. Seconded by David Blankfard. 28 VOTE: Unanimous 29 30 31 AGENDA ITEM 6: ADJOURNMENT 32 33 Meeting was adjourned at approximately 12:10am. 34