HomeMy WebLinkAboutAgenda - 10-19-1999 - 8h1
ORANGE COUNTY
BOARD OF COMIVIISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: October 19,1999
Action Agenda
Item No.
SUBJECT: American Towers, Inc.'s Appeal of Denial of the
SUP-2-98; Board of Commissioners Findings of
Fact
DEPARTMENT: County Attorney
PUBLIC HEARING: (YIN)
ATTACHMENT(S): INFORMATION CONTACT:
9/30/99 Order Geoffrey E. Gledhill
Decision of the Board of County 732-2196
Commissioners
TELEPHONE NUMBERS:
Hillsborough 732-8181
Chapel Hill .968-4501
Durham 688-7331
Mebane 336-227-2031
PURPOSE: To comply with an Orange County Superior Court Order dated September 30, 1999.
BACKGROUND: On September 27, 1999 the Orange County Superior Court commenced the
hearing on the appeal of American Towers, Inc. d/b/a Gearon Communications of the Board of
County Commissioners' denial of an application for a telecommunications tower. After hearing from
counsel of the parties and reviewing the file, the Court entered the Order which is attached to this
agenda abstract. The decision of the Board which is attached to this abstract has been prepared by
the County Attorney to comply with the Court's Order.
FINANCIAL IMPACT: Unknown.
RECOMMENDATION(S): It is the recommendation of the County Attorney that the Board adopt the
attached findings, as contained in the Decision of the Orange County Board of Commissioners in
the matter of the Class A Special Use Permit, Application SUP-2-98.
mydocumentslamtowersabstract. doc
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STATE OF NORTH CAROLINA IN T~~4G~~~kRAL COURT OF JUSTICE
SUPERIOR COURT DIZlISION
COUNTY OF ORANGE or S~Q v~ F~17~: ~9-CVS-363
AMERICP.N TOWERS, INC. d/b/a ~) _
GEARON COMMUNICATIONS and )~''
BELLSOUTH CAROLINAS PCS )
LIMITED PARTNERSHIP, )
Petitioner, )
v. )
ORDER
ORANGE COUNTY, NORTH )
CAROLINA and MARGARET BROWN, )
STEPHEN NAT,KIOTIS, BARRY )
JACOBS, MOSES CAREY, JR. and )
ALICE GORDON, in their ) _
official capacities as members)
of the Orange County Board )
of County Commissioners,. )
.)
Respondent. )
THIS CAUSE coming on to be heard before the Honorable J.B.
Allen, Jr., Judge Presiding over the Superior Court of Orange
County on September 27, 1999. M. Gray Styers, Jr. appeared on
behalf of the Petitioner, American Towers, Inc. d/b/a Gearon
Communications and BellSouth Carolinas PCS Limited Partnership;
Geoffrey E. Gledhill appeared on behalf of Respondent, Orange
County, North Carolina and Margaret Brown,. Stephen.Halkiotis,
William Crowther, Moses Carey, Jr. and Alice Gordon in their
official capacities.. as members of the Orange County Board of
County Commissioners,.. This matter is an appeal of a decision by-
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the Orange County Board of Commissioners to deny the Petitioner
American Towers, Inc.'s application for a special use permit to.
site a telecommunications tower in the zoning jurisdiction of
Orange County.
Counsel for the Petitioner and the Respondent thereupon
verbally presented the following stipulations to the court:
1. The Record in this matter, including the amendment to
it, is timely filed.
2. Barry Jacobs is added as a respondent, in his official
capacity as a member of-the Board of Commissioners of Orange
County; and, William Crowther, in his official capacity as a
member of the Board of Commissioners of Orange County, is
deleted as a respondent.
3. This Order may be entered out of session, out of
county and out of term as provided by law.
After hearing argument of counsel and a statement from
counsel that they had no objection to this order:
IT IS ORDERED, ADJUDGED. .AND DECREED:
1. The Record in this matter, including the amendment to
it, is timely filed.
2. Barry Jacobs is added as~a respondent, in his official
capacity as a member of the Board of Commissioners of Orange
County; and, William Crowther, in his official capacity as a
~~
member of the Board of Commissioners of Orange County, is
deleted as a respondent,.
3. In its discretion, the Court further orders that this
matter be and it is hereby remanded to the Orange County Board
of Commissioners for a written decision which makes findings of
fact as to specific evidence introduced at the public hearing on
this application for a special use permit and makes any
necessary conclusions of law.
IT IS FURTHER ORDERED, .ADJUDGED AND DECREED that this
matter is to be placed on the Orange County Superior Court
calendar to be heard at 10:00 a.m., October 25, 1999 or as soon
thereafter as it can be heard.. The .written decision of the
Orange County Board of Commissioners to be filed with the Court
in response to this remand shall be filed and served on .counsel
for the Petitioner no later than 24 hours before the October 25,
1999 hearing on this matter.-
This the 27`h day of September, 1999. '
Signed this the day of 1999.
Allen, Jr.
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mydocuments/amtoword.doc
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Decision of the Orange County
Board of Commissioners in the matter
of the Class A Special Use. Permit
Application SUP-2-98
Pursuant to the September 30, 1999 Order of the Honorable
J.B. Allen, Jr., Judge Presiding over the Superior Court of
Orange County,, a copy of which is Exhibit A to this final
decision., the Orange .County Board of Commissioners makes this
written decision at the consideration of this matter at the
Board of Commissioners' regular meeting on October 19, 1999. The
Board expressly incorporates and adopts the findings and
conclusions contained in the February 8, 1999 transmittal letter
to Mr. Ken Carter, Real Estate Manager, American Towers, and the
accompanying findings under the column "Board of Commissioners
findings" .that are attached to the February 8, 1999 Karen
Lincoln to Ken Carter letter which letter and findings are
Exhibit B to this final decision. The Board further finds,. upon
review of the petition for a writ of certiorari and for judicial
review filed on behalf of American Towers, Inc. d/b/a Gearon
Communications and BellSouth Carolinas, PCS Limited Partnership,
paragraphs numbered 5, 6, 7, 8, 9, 10, 17, 18, 30, 31, 32, 33,
34, 35, 36 and 37 of the petition for writ of certiorari. and -for
judicial review. In that respect paragraphs 30 through 37 allege
the existence of legal infirmities in Orange County's zoning
regulations and violations of State and federal law which at no
time were raised in the application or during. the public hearing
process. There is no reference to any such legal issues in the
record in this matter. Had-the matters raised in paragraphs 30
through 37 been.: presented to the Board of County .Commissioners
in American Towers' application for a special use permit, the
Board of .County Commissioners would. have concluded that they
were not timely raised, not. appropriate for .consideration in
this special use permit process or otherwise without merit.
These contentions were not considered by the Board of County
Commissioners in its decision in this matter and are not
considered now because they are not before the Board of
Commissioners of Orange County.
After review of American Towers, Inc.'s application for a
Class A Special Use Permit to construct a telecommunications
tower in Orange County, conducting a public hearing on the
application, and listening to evidence submitted by and on
behalf of American Towers 'and by and on behalf of parties in
opposition to the granting of the permit, the Orange County
Board of Commissioners makes the following findings of fact:
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1. Article 8.6 of the Orange County Zoning Ordinance
requires that an application for a Class A Special Use
Permit be submitted on farms which provide a full and
accurate description of the proposed use, including
location, appearance and operational characteristics.
The Board finds that a complete application on
.appropriate forms has been submitted.
2. Article 8.8(a) of the Orange County Zoning Ordinance
requires that twenty-six copies of the site plan of the
proposed special use be-prepared by a registered land
surveyor, architect, or engineer. The Board finds that
twenty-six copies of the site plan, prepared by O'Brien
and Gere, have been submitted.
3. Article 8.8 (b) of the Orange County Zoning Ordinance
requires that the site plan indicate the elevations of
all proposed structures to be used in the development.
The Board finds that the elevations of all proposed.
structures in the application are indicated on the site
plan.
4. Article 8.8 (c) of the Orange County Zoning Ordinance
requires that applicants for a special use permit pay a
fee, as set by the -Board of County Commissioners. The
Board finds that the application fee has been paid `for
American Towers' application.
5. Article 5 of the Orange: County Zoning Ordinance lists
standards .for minimum lot size, lot width, front, side
and rear setbacks, maximum building height and lot
coverage, and development intensity. American Towers
applied for a Special Use Permit for property zoned Rural
Buffer. The standards for Rural Buffer are listed below,
with the Board's findings in regards to each:
a)-The' minimum lot- area per dwelling unit in a RB
district is 40,000 square feet. The Board finds
there are 2.77 acres in the proposed tract, which
equals 120,661.2 square feet.
b) The minimum lot width in a RB district is 150
feet. Thee Board finds that the lot is
approximately 348 feet in width.
c) The required front setback in a RB district is 40
feet. The Board finds that the proposed tower is
approximately" 125 feet from the front property
...line
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d) The required side and rear setbacks in a RB
district are 20 feet. .The Board finds that the
closest proposed structure is approximately 125
feet from the side or rear property line.
e) The maximum building height. in a RB district is
25 feet. The Board finds that the proposed
building cabinet height is 5.25 feet.
6. Article 6 of the Orange County Zoning Ordinance lists
specific. standards that apply. to various types of
development applications. Article 6.12 contains those
development intensity standards that apply to group
developments controlled by the Land Use Intensity (LUI)
system. These standards are listed below, with the
Board's findings for each:
a) The maximum floor ratio for this development is
0.088. To determine the maximum square footage in a
development, the following equation is used:
.088 x total square feet of property = maximum amount of
floor space that
can be used
In this case, the result of this calculation is
.10,618. square feet of usable floor space. The .Board
..finds that the proposed maximum floor area is 1500
square feet, which is below this limit.
b) Article 6..12 requires a minimum open space ratio of
0.84, which in this project translates to a required
minimum open space of 101,355 square feet. The
Board finds that the site plan indicates 109,360
square feet of open space.
c) The site. must have a minimum pedestrian/landscape
ratio of 0.21. In this project that translates into
a required minimum pedestrian/landscape space of
25,339 .square feet. .The Board finds that the site
.plan. indicates 103,800 square feet of
pedestrian/landscape space.
7. Article 8.2.4 of the Orange. County Zoning Ordinance
requires:
a) that applicants for a .special use permit show the
methods. and adequacy of provisions for sewage
disposal facilities, solid waste and water service.
The Board finds that the site will not be a staffed
facility, and therefore .water and sewer disposal
facilities will not be necessary. ~-
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b) that an applicant for a special use permit show the
method and adequacy of police, fire and rescue ,squad
protection,. The Board finds that fire protection
for the proposed tower site would be provided by
Orange Grove Fire Department; rescue service by
Orange County Emergency Management; and police
protection by the Orange County Sheriff's
Department.
c) that an applicant for a special use permit show the
method and adequacy of vehicle access to the site
and traffic conditions around the site. The Board
finds that the site plan indicates a 12-foot access
drive that leads out to N.C. 54.
8. Article 8.8.17a of the Orange County Zoning Ordinance
sets out specific requirements which must be submitted as
part of an application a telecommunications tower as a
special use.
a) A site plan must be submitted, showing site and size
of all existing structures within 500 feet of the
site, existing and proposed topography at a contour
interval of five feet and any officially designated
floodways and floodplains, or the presence of
alluvial soils. The Board finds that the site plan
shows the structures along with topography. The
Board further finds that there are no floodways,
floodplains or alluvial soils indicated on the plan.
b) Plans, and elevations for all proposed structures
and descriptions of the color and nature- of all
exterior material. The Board finds that the
application indicates there will be one equipment
cabinet, and that the proposed tower will be a light
steel gray.
c) A landscape plan showing, at the same scale as the
site plan, existing and proposed trees, plus shrubs,
ground cover and other landscape materials. The
Board finds that a site and landscape plan has been
submitted. The .Board also finds that existing
vegetation would be maintained around the perimeter
of the facility.
d) Evidence that -the applicant has investigated the
possibilities for locating the proposed facilities
on an existing tower. The applicant must provide a
listing of all towers within a ~ mile (for towers
shorter than 200 feet) or 'mile (for towers 200
feet or taller) radius o~ the proposed tower site.
The Board finds that there are no other
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telecommunications towers within 1 mile of this
site.
e) Documentation from applicable state or federal
agencies indicating requirements which affect the
appearance of the proposed tower, such as lighting
and coloring. The Board finds that the proposed
tower will be a light steel gray, and that the
indicated lighting will be as required by the FAA,
with white strobe at daytime and red blinking at
night.
f) Draft letter of credit which will guarantee the
removal of the tower in the event .that it is
abandoned or unused for a period of twelve months.
The Board finds that a draft bond was submitted by
American Towers and was submitted for review to the
County Attorney. If the permit had been approved, a
condition of approval would have been added
regarding security for removal of the tower.
g) A listing of all property owners within 1000 feet of
the parcel to be the site of the tower, and
notification to each of those property owners of the
public hearing on the special use. The Board finds
that. a listing of property owners was provided and
that each property owner received notification.
h) Photographs of clearly visible balloons floated at
the proposed tower location to the maximum height of
the .towers. Photographs should be taken from
locations. such as: property lines, and/or nearby
residential areas, historic. sites, roadways,
including scenic roads and major view corridors, and
other locations as deemed necessary by the Planning
Staff to assess the visual impact. The Board finds
that the applicant, American Towers, did not meet
this requirement. The Board .finds that the
photographs submitted by the applicant do not meet
required parameters to determine the visual impact
of the proposed tower to nearby .residential
development.
i).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. The Board finds that the application
indicates compliance with all federal, state and
local emission requirements.
9. Article 8.8.17a.2 of the Orange County Zoning Ordinance
sets out specific standards to be used in deciding upon
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an application for approval of a special use permit for a
telecommunications tower. The standards to be used
include:
a) Adjacent to residential zoning districts, minimum
setbacks from the base of the tower to~ the property
boundary shall be equal to the height of the tower.
The setback may be reduced to no less than one-half
of the tower height if easements for the remaining
setback distance are granted by adjoining property
owners. The Board finds that the site plan
indicates that the closest property line is 250 feet
away from the tower. The tower is proposed to be
230 feet in height.
b) Adjacent to non-residential uses or non-residential
zoning districts, minimum setbacks from the base of
the tower to the property boundary shall be the
greater of 200 of the tower height, or the minimum
required setback. The Board finds that the proposed
tower is 250 feet from non-residential uses.
c) A Type C Landscape Buffer shall be provided between
the tower and adjoining property. Existing
vegetation may be removed only to the extent
necessary to accommodate the tower, equipment
buildings, and support structures such as guy wires.
The Board finds that a Type C Landscape Buffer will
be provided around the base of the. tower facility.
The Board further finds that existing vegetation
will be disturbed only to accommodate the tower and
entrance road.
d) The site plan shall indicate a location for at least
one equipment building in addition to that proposed
for use by the applicant. The Board finds that the
site plan indicates an area reserved for that
purpose.
e) Security fencing is to be provided around the
perimeter of the site. The Board finds that a 7-
foot chain link security fence is indicated around
the site. '
f) The communications tower is structurally designed to
support at least one additional user, and the
special use permit includes a statement that the
owner of the tower is willing to permit other
user(s) to attach communication facilities which do
not interfere with the primary purpose of the tower,
provided that such other masers agree to negotiate a
reasonable compensation to the owner from such
liability as may result from such attachment. The
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Baard finds that the tower will be structurally able
to accommodate additional users.-
. g) The color of the tower is of .light tone, except to
.the extent required by law, so as to minimize its
visual impact. The .Board finds that the tower will
be a light steel gray, which will minimize its
visual impact.
h) The tower will not be artificially lighted unless
required. by the FAA, FCC, or other federal or state
agency. Where such agencies. allow a choice between
painting the tower or installing strobe lighting,
painting shall be the preferred choice. The Board
finds that the tower will be lit as required by the
FAA, with white strobe lights during the day and red
blinking lights at night.
i) The tower and antenna .will not result in a
significant adverse impact on the view of or from
any historic sight, scenic road, or major view
corridor. The Board finds that 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. The Board
further finds that there are existing trees around
.the proposed site.
j) All abandoned communications towers must be removed
within 12 months of the cessation of use. A bond or
other security guaranteeing the removal of the tower
in the event that it is abandoned or unused for a
period of twelve months shall be posted. A cost
estimate shall be provided by a qualified
contractor. The amount of the security shall be 110
percent of the. estimate. The Board .finds that a
draft bond has been submitted. If the permit had
been approved, a condition of .approval would have
been added requiring security for removal of the
tower.
k) 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. The Board
..finds that the proposed tower would comply with all
federal, state and local emission requirements.
1) The special use. permit shall include~--a condition
that the electromagnetic radiation ('levels maintain
compliance with requirements of the Federal
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Communications Commission, regarding emission of
electromagnetic radiation. Within 30 days of
installation of equipment on the tower,' and within
30 days of the installation of -any additional
equipment in the future, the tower owner shall
provide documentation of emission levels in relation
to FCC standards.. In addition, the tower owner must
provide documentation of emission levels within five
working days if so requested by Orange County.
Orange County may make such requests at any time,
not to exceed four times per year. -'The Board finds
that, if the permit had been approved, a condition
of approval would have been added that the
electromagnetic radiation levels maintain compliance
with requirements of the Federal Communications
Commission regarding emission of electromagnetic
radiation.
10. Articles 8.1.1 and 8.2.2 of the Orange County Zoning
Ordinance further require that prior to the approval of
a special. use permit application, the applicant prove
that the use will maintain or promote the public health,
safety and general welfare, if located where proposed
and developed and operated according to the plan as
submitted. The Board finds that the proposed tower will
- provide 'continuous wireless services for residences and
-businesses. The Board further -finds that the tower will
provide wireless service to 911 and, other emergency
needs.
11. Article 8.2.1- of the Orange County Zoning Ordinance
requires that prior to the approval of a special use
permit application, the applicant prove that the use
will 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). The Board finds that the
applicant, American Towers, has' not met this
requirement.
- The Board heard testimony from American Towers on this
issue. American Towers presented the testimony of two
witnesses on valuation. One was a certified real estate
appraiser; the other a real estate valuation specialist.
r-----.
Both testified that, in their opinion, the tower would
have "no impact on t~ value of contiguous property.
These opinions were based on separate studies. The real
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13
estate appraiser, Winston. T. Morgan, compared the
Greenfield Road neighborhood to the Turkey Run
subdivision. Mr. Morgan testified that there had been
no decrease in value of the homes in the Turkey Run
.subdivision, which has three towers near it. [Record, 2-
12. The real estate valuation specialist, Joseph
Smathers, Jr., compared a neighborhood with towers,
Wildwood Subdivision, to one without, Cornwallis Hills
Subdivision. Mr. Smathers concluded that the existence
of telecommunications towers in close .proximity to
.Wildwood had. a minimal negative effect on the value of
the homes in the Wildwood .neighborhood. [Record,
Smathers Report, Conclusions.] He stated, at the
hearing, that studies conducted by him have indicated
-that a tower structure does not "generally impact on the
property values of surrounding property." ,[Record, 5-10.
Emphasis added.]
The Board also heard evidence from adjoining landowners
on the issue of valuation. These citizens offered
testimony to point out weaknesses in the methods and
.conclusions of both Morgan and Smathers. The Board heard
evidence at its meeting on November 17th, 1998 that
Morgan was ..trying to~compare incomparable neighborhoods.
Russ Townsley testified that the comparison of these two
neighborhoods was inappropriate because Greenfield Road
currently has no nearby telecommunications towers nor
any above ground utility wires, while Turkey Run was
constructed after the location. of the nearby towers.
Thus, he .stated, there would not be a period in the life
of the Turkey Run subdivision pre-tower to compare to
Greenfield Road. [Record, 2-8 . ]
The Board also heard testimony that Smathers'. report was
inconclusive because of a lack of similarity between
Wildwood and Greenfield Road. For example, .the average
lot size on Greenfield Road is one acre, as compared to
1/ acre in Wildwood; Greenfield has restrictive covenants
that prohibit aboveground wires, while Wildwood does
not. Based on these differences, it was argued,
.Smathers' report does not prove that the proposed tower
would not diminish property values. [Record, 2-8, 2-13.]
The Board heard testimony from contiguous property
owners whose homes are located on Greenfield Road and
who spoke in opposition to the tower:
Russ Townsley testified that LTe--and other contiguous
landowners think that they"tower would diminish the
value of their properties. He testified that the
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impact report submitted by American Towers was
flawed, in that it did not take into account market
conditions, improvements to the homes, and
differences between the comparison neighborhoods and
Greenfield Road homes. Townsley also distributed
photographs to the Board which show the natural
setting of the homes on Greenfield Road, that power
lines are buried, and that trees grow up to the
street. He testified that this shows that a 235'
tower would not be in harmony with Greenfield Road.
Mr. Townsley also testified that American Towers'
contention that no cellular service was available in
the Highway 54 West area was false. To prove this
he submitted a taped recording of cellular phone
calls made in the area in question. The tape also
showed that both analog and digital signals were
available on Highway 54 going West from Carrboro.
[Record, 2-8,9.]
Chris Braun testified that, although American Towers
contends cellular services are needed by EMS and
other emergency services, cellular phones have not
been used in the seven years that he has been a
paramedic. Braun testified that radios are
preferred by emergency officials such as ..the Durham
EMT Department, and that they do not plan to start
using cellular phones. Braun also testified that he
had seen a recent .employee memo from the hospital
where he works and that the hospital would be
implementing a policy discouraging the use of cell
phones because they interfered with patient
equipment.. [Record, 2-9.]
Jon Webster testified that he and his wife had
purchased their home on Greenfield Road a year ago,
and that 'they might not have if they had known that
a tower would be located close by. Webster
testified that the existing vegetation in the
neighborhood would be inadequate to obscure a
blinking tower. [Record, 2-9:]
Rakhski Khan testified that if the tower went up in
its proposed site, 500 feet from her back deck, her
property would not be worth the same to her anymore.
She tes~ ified that she never would Have purchased
her hoirte in 1992 if the tower had been there. She
.further testified that the-tower would not be in
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harmony with the homes and other property on
Greenfield Road. Ms. Khan also submitted to the
Board a letter from another neighbor who was unable
to attend, Dr. Bryant Cook. Mr. Cook's letter said
that he strongly opposed the cellular tower because
it would, be unattractive and would have a negative
impact on both the financial and personal value of
the properties in the Greenfield Road area. [Record,
2-9,10.]
Jan Scallion testified that since she moved to
Greenfield Road two years ago, she has .worked to
improve her property in various ways, and that in
the last two years the value of her home has gone up
20%. She testified that the tower would make the
value of her home, as well as the homes of others,
go down. [Record, 2-10.]
.Amanda Stipe testified that she is an animal control
officer for Carrboro, and that she is satisfied with
..using, radios. She testified that .she does not
believe the tower would maintain or promote the
public health, safety and general welfare, as
.required by the Ordinance. [Record, 2-10.]
Fred Stipe testified that he is the co-president of
the homeowners association and strongly opposes the
tower. Stipe testified that almost all of the trees
in the Greenfield Road area are deciduous, and would
not block the view of the tower once the leaves
fell. He testified ..that the neighborhood has
restrictive covenants which requires buried utility
lines and has a strong. emphasis on neighborhood
appearances. The proposed tower would have a very
negative effect on the neighborhood appearance. He
also testified that common sense tells. you that a
blinking, 230 foot tower would have a negative
impact on property values. [Record, 2-10,11.]
The .Board also received into evidence photographs which
were submitted to show the character of the residential
neighborhood that would be directly impacted by the
proposed tower. These photographs further showed the
deciduous tree cover and illustrated the contentions of
................
the citizens speaking about rt-he visual and aesthetic
.impact the tower would (have on their neighborhood.
[Record, 2-8 (a) , 2-8 (b) , 2-8 (c) , 2-8 (d) , 2-8 (e) . ]
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The Board heard evidence from Gary Phillips, a real
estate consultant and land planner, who testified on the
issue of maintaining property values and on the issue of
harmony with the area where the special use is proposed
to be located. Phillips testified that both the
Smathers and Morgan studies were seriously flawed, and
only served to demonstrate that all property values in
the area have risen in the past few years,. Phillips
also stated that he had experience with selling lots in
the vicinity of a tower in the Ode Turner Road area near
Hillsborough, and that that tower had made it difficult
to sell those lots around the tower. The prices for the
lots closer to that tower were 25-300 lower than the
prices for lots away from the tower. He testified that,
in his opinion, American Towers had failed to show that
it complied with all of the requirements of the Orange
County Zoning Ordinance; American Towers' evidence did
not prove that its proposed tower use would maintain or
enhance the value of the contiguous property; and had
failed to provide evidence that it would be in harmony
with the area in which it would be located. [Record, 2-
13.]
After hearing all of the evidence submitted by both the
applicant and those in opposition to the tower, on this
issue, the Board finds that the tower will not maintain
or enhance the value of contiguous properties.
12. Article 8.2.1 of the Orange County- Zoning Ordinance
requires that an applicant for a special use permit
demonstrate that the location and character of the use,
if developed according to.the plan submitted, will be in
harmony with the area in which it is to be located and
the u.se is in compliance with the general 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.
The Board finds that that tower is to be located next to.
a non-residential use (stone quarry) , and that the site
is heavily wooded. The Board further finds that the
Orange County Comprehensive Plan does not `speak to
cellular (telecommunications) towers.
Based on the foregoing findings of fact the' Board of
Commissioners of Orange County concludes as a matter of law that
the applicant, ( American Towers, Inc. d/b/a Gearon
Communications, failed to satisfy the requirements of Orange
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County zoning regulations for a telecommunications tower special
use permit. .Therefore, American Towers' Class A Special Use
Permit, Application .SUP-2-98 is denied. This decision was
rendered by the Board of Commissioners initially on February 2,
1999 and amplified to comply with the September 30, 1999, Order
of the Honorable J.B. Allen, Jr., Judge Presiding. over the
Superior Court of Orange County.
I, Beverly A. Blythe, County Clerk of Orange County, North
Carolina, do hereby certify that the foregoing is the decision
of the Orange County Board of Commissioners concerning the
application for a telecommunications tower in SUP-2-98.
WITNESS my hand and the seal of said County, this day.
of 1999. ,
Clerk to the Board of Commissioners
mydocuments/amtowersboccdecision.doc
13
Exhibit A
18
STATE OF NORTH CAROLINA IN T~~G':' R.AL COURT OF JUSTICE
SUPERIOR COURT DIVISION,
COUNTY OF ORANGE GQ x;4.0 ~0 ('~'~z ~9-CVS-363
!`+r
AMERICAN TOWERS, INC. d/b/a )
GEARON COMMUNICATIONS and )~'~~
BELLSOUTH CAROLINAS PCS )
LIMITED PARTNERSHIP, )
Petitioner, )
v. )
ORDER
ORANGE COUNTY, NORTH )
CAROLINA and MARGARET BROWN, )
STEPHEN uAT,KIOTIS, BARRY )
JACOBS, MOSES CAREY, JR. and )
ALICE GORDON, in their )
official capacities as members) .
of the Orange County Board )
of County Commissioners, )
Respondent. )
THIS CAUSE coming on to be heard before the Honorable J.B.
Allen, Jr., Judge Presiding over the Superior Court of Orange
County on September 27, 1999. M. Gray Styers, Jr. appeared on
behalf of the Petitioner, American Towers, Inc. d/b/a Gearon
Communications and BellSouth Carolinas PCS Limited Partnership;
Geoffrey E. Gledhill appeared on behalf of Respondent, Orange
County, North. Carolina and Margaret Brown, .Stephen Halkiotis,
William Crowther, Moses Carey, Jr. and Alice Gordon in their
official capacities--mss members of the Orange County Board of
County Commissioners. This matter is an appeal of a decision by
19
the Orange County Board of Commissioners to deny the Petitioner
American Towers, Inc.'s application for a special use permit to
site a telecommunications tower in the zoning jurisdiction of
Orange County.
Counsel for the Petitioner and the Respondent thereupon
verbally presented the following stipulations to the court:
1. The Record in this matter, including the amendment to
it, is timely filed.
2. Barry Jacobs is added as a respondent, in his official
capacity as a member of the Board of Commissioners of Orange
County; and, William Crowther, in his official capacity as a
member of the Board of Commissioners of Orange County, is
deleted as a respondent.
3. This Order may be entered out of session, out of
county and out of term as provided by law.
After hearing argument of counsel and a statement from
counsel that they had no objection to this order:
IT IS ORDERED, ADJUDGED AND DECREED:
1. The Record in this matter, including the amendment to
it, is timely filed.
2. Barry Jacobs is added as 'a respondent, in his official
capacity as a member of the Board of Commissioners of Orange
County; and, Williarcy-Cro ther, in his official capacity as a
20
member of the Board of Commissioners of Orange County, is
deleted as a respondent.
3. In its discretion, the Court. further orders that this
matter be and it is hereby remanded to the Orange County Board
of Commissioners for a written decision which makes findings of
fact as to specific evidence introduced at the public hearing on
this application for a special use permit and makes any
necessary conclusions of law.
IT IS FURTHER ORDERED, ADJUDGED .AND DECREED that this
matter is to be placed on the Orange County Superior Court
calendar to be heard at 10:00 a.m., October 25, 1999 or as soon
thereafter as it can be heard. The written decision of the
Orange County Board of Commissioners to be filed with the Court
in response to this remand shall be filed and served on counsel
for the Petitioner no later than 24 hours before the October 25,
1999 hearing on this matter.
This the 27th .day of September, 1999.
Signed this the day of 1999.
mydocuments amtoword.doc
I~
H.1.1 C11, V 1
Exhibit B
' ORANGE COUNTY PLANNING DEPARTMENT
306F REVERE ROAD
~;
HILLSBOROUGH, NORTH CAROLINA 27278
`,..« ., o, 1~~ ~~ I`VE D
,~
b~ . .
u° ~ F E B 1 1 1999
February 8, 1999
Mr. Ken Carter Real Estate Manager
American Tower
3016 Hillsborough Street
Suite 201
Raleigh, North Carolina 27607.
Re: Action of the Orange Gounty Board of Commissioners in the Matter of the
Class A Special Use Permit Application SUP-2-98
Dear Mr. Carter:
On February 2, 1999, the Orange County Board of Commissioners voted to deny the
above referenced Special Use .Permit application to ~ construct a 230 foot
telecommunications tower, an equipment cabinet, and an area for future additional
telecommunication carriers on property owned by Phillip and Alice Durham located on
N.C. 54 in Bingham Township (Tax Map No. 28..9P)..
Based on evidence presented at the public hearing held August 24,1998, and resumed
on November 17, 1998, the Board concluded that the applicant did not satisfy its burden
of establishing, by competent material and substantial evidence, the existence of the
facts and conditions required by Article 8, Section 8.8.17a.1 (d)(2)(h) and Article 8,
Section 8.2.1(b)(2) of the Orange County Zoning Ordinance. Findings of fact of the
Orange County Board of Commissioners are enclosed.
With respect to Article 8, Section 8.8.17a.1 (d)(2)(h), photographs submitted by the
applicant do not meet the required parameters to determine the visual impact of the
proposed tower to nearby residential development.
With respect to Article 8, Section 8.2.1(b)(2), the reports by Joseph Smathers, Jr. and
an Impact Study by Morgan & Company, Inc., do not furnish information relating to the
proximity (distance) from existing towers of properties used in the analyses nor compare
those distances with proximity of the proposed tower to properties on Greenfield Road.
Those reports do not compare sales (market values) . of the properties before
construction of a tower with sales (market values) of the properties after construction of
a tower; nor do those repots provide any comparison of properties within an area
~ .~ .~~
2~
,.
~~.
Mr. Ken Carter, American Tower
February 8, 1999 ~ 22
Page 2 .
impacted by a tower with respect to sales of properties in closest proximity (for example,
those that are contiguous) to the tower (or properties where the tower is most visible)
with sales of properties farthest from the tower (or properties from which the tower is not
very visible).
This decision of the Board of County Commissioners has been filed in the office of the
Zoning Officer on the date of this letter.
You may appeal the decision of the Board of County Commissioners by filing a petition
for writ of certiorari with the Clerk of Superior Court-. The' appeal must be filed within
thirty (30) days of delivery of this notice of the decision to you.
If I may be of further assistance, I may be contacted by telephone at (919) 732 8't81,
extension 2583.
Sincerely,
r'
~ ;i
~,
Karen Lincoln AI
Karen Lincoln AICP , .
Supervisor, Curr
Supervisor, Current Planning '
cc: Geof Glee
cc: Geof Gledhill, County Attorney ~ .
Enclosure
Enclosure
`.
23
~-. FINDINGS OF THE ORANGE COUNTY PLANNING BOARD
' ~ PERTAINING TO GEARON COMMUNICATIONS
APPLICATION: GEARON COMMUNICATIONS
( O'DAY DRIVE OFF 111.C. 54)
Special Uses must comply with general and specific standards as set forth in Article 8. Article 8.2.1 b) requires written
findings certifying compliance with the following:
(1) Specific regulations governing individual Special Uses as set forth in Article 8.8. These regulations are
divided into two (2) section which include:
la) Application components; and
(b} Specific standards for Special Uses (Article 8.2.4, Article 8.8.17.1 and 8.8.17.2).
(2) Other requirements as set forth in the Zoning Ordinance, including the provisions of Article 6
(Dimensional Requirements) and Article 6 (Application of Dimensional Requirements).
Listed below are the findings of the Orange County Planning Board regarding the application in question. The findings
have been presented by Article and requirement to assist the Board of Commissioners in its deliberations.
ARTICLE 8.6 AND 8.8 -APPLICATION COMPONENTS ("Yes" indicates compliance; "No" indicates Non-compliance
PLANNING
BOARD BOARD OF
- RECOMMENDED EVIDENCE SUBMITTED COMMISSIONERS
FINDINGS TO SUPPORT FINDINGS FINDINGS
Ordinance Reouirements
8.6 -Application submitted on forms
providing full and accurate description
of proposed use, including location,
appearance and operational
characteristics.
8.8 a} -Twenty six copies of the site
plan prepared by a registered land
surveyor, architect, or engineer.
_x_Yes No
A complete application on
appropriate forms has been•
submitted.
_x_Yes No
_x_Yes No
8.8 b) -Elevations of all proposed _x_Yes No
structures to be used in the development.
8.8 c) - A fee, as set by the Board _x_Yes No
of County Commissioners.
Twenty-six copies of the
site plan, prepared by
O'Brien and Gere
have been submitted.
Elevations are indicated on
the site plan.
The application fee has been
paid.
~t
.~
_x_Yes No
_x_Yes No
_x_Yes. No
.~'"~
4'
1
24
ARTICLE 5 -DIMENSIONAL REQUIREMENTS f"Yes" indicates compliance• "No" indicates Non-compliance)
• PLANNING
BOARD ~ BOARD OF
RECOMMENDED EVIDENCE SUBMITTED ~ COMMISSIONERS
FINDINGS TO SUPPORT FINDINGS FINDINGS
Ordinance Requirements
Article 5 lists standards for minimum
lot size, lot width, front, side and
rear setbacks, maximum building height
and lot coverage, and development
intensity.
The applicant has applied for a
Special use Permit on property zoned
RB. The standards for the RB district
are set forth in Article 5.1.2 and
are as follows:
a) Minimum lot area per dwelling
unit 40,000 sq. ft.
b) Minimum lot width -
150 feet
c) Required front setback -
40 ff.
d) Required side and rear
setbacks - 20 ft.
e) Maximum building height -
25 ft.
Compliance with lot coverage and
development intensity standards
is addressed in Article 6.
^x_Yes No There are 2.77 acres x Yes No
proposed in the tract.
_x_Yes No The lot is approximately x Yes No
348 feet in width.
_x Yes No The proposed tower is x Yes No
approximately 125 feet from
the front property line.
x_Yes No The closest proposed x
Yes No
structure is approximately _
125 feet from the side or rear
property line.
_x Yes No The proposed equipment cabinet x Yes No
height is 5.25 feet. The tower is
indicated as 230 feet.
,~ it
ARTICLE 6 -APPLICATION OF DIMENSIONAL REQUIREMENTS
' j"Yes" indicates compliance; "No" indicates Non-compliance
PLANNING
BOARD
RECOMMENDED
FINDINGS
Ordinance Requirements
Article 6 lists specific standards
which apply to various types of
development applications.
Article 6.12 contains those
development intensity standards
which apply to group developments
controlled by the Land Use Intensity
(LUI) system.
a) Minimum gross land area -
N/A
b) Maximum gross land area-
N/A
c) Maximum floor ratio -
.088
d) Required minimum open space
ratio - .84
Required minimum open space -
101,355 sq. ft.
e) Required minimum pedestrian/
landscape ratio - .21
Required minimum pedestrian/
landscape space - 25,339 sq. ft.
Note: See Appendix A for "Definitions".
(---
_x_Yes No,
_x_Yes No
_-x_Yes No
25
BOARD OF
EVIDENCE SUBMITTED COMMISSIONERS
TO SUPPORT FINDINGS FINDINGS
N/A
N/A
Maximum permitted by _x_Yes No
ordinance is 10,618 sq. ft.
Proposed maximum floor area
is 1500 sq. ft.
The site plan indicates x Yes ' No
109,360 sq. ft. of open
space.
The site plan indicates 103,800 _x Yes No
sq. ft. of pedestrian/landscape
space.
~1
.~
26
ARTICLE 8.2.4 -SPECIFIC STANDARDS(ALL SPECIAL USES f"Yes" indicates compliance• "No" indicates
• Non-compliance)
' PLANNING
BOARD BOARD OF
RECOMMENDED EVIDENCE SUBMITTED COMMISSIONERS
FINDINGS TO SUPPORT FINDINGS FINDINGS
(_`
Ordinance Requirements
Article 8.2.4 requires the applicant
to address the following:
a) Method and adequacy of provision
for sewage disposal facilities,
solid waste and water service.
b) Method and adequacy of police,
fire and rescue squad protection.
c) Method and adequacy of vehicle
access to the.site and traffic
conditions around the site.
_,x_Yes No Applicant indicates the site x Yes No
• is not a staffed facility,
therefore, water and sewer
disposal facilities are not
necessary.
_x_Yes No Fire protection will be provided _x_Yes No
by the Orange Grove Fire Department,
rescue service by the Orange
County Emergency Management
and police protection by the
Orange County Sheriff's
Department.
_x_Yes No The site plan indicates a x Yes No
12 foot access drive that
leads out to N.C.54.
d
.~
~•
27
ARTICLE 8.8.17a - TELECOMMUNICATION TOWERS ("Yes" indicates compliance• "No" indicates Non-compliance?
PLANNING
BOARD BOARD OF
RECOMMENDED EVIDENCE SUBMITTED COMMISSIONERS
• ' FINDINGS TO SUPPORT FINDINGS FINDINGS
Ordinance Requirements
8.8.17a.1 Additional Information
a. A Site Plan showing site and size _x Yes No The site plan shows the x Yes No
of all existing structures within _
structures along with
500 feet of the site, existing and topography. There are
proposed topography at a contour no floodways, floodplains or
interval of five feet and any officially alluvial soils indicated on the
designated floodways and floodplains, plan.
or the presence of alluvial soils.
b. Plans, and elevations for all _x_Yes No The applicationindicates _x Yes No
proposed structures and descriptions there will be one equipment
of the color and nature of all exterior cabinet. The tower will be a
material. light steel gray.
c, A:Landscape Plan showing, at the x Yes No
~ A Site and Landscape Plan x Yes No
same scale as the Site Plan, has been submitted. Existing
existing and proposed trees, plus vegetation will be maintained
shrubs, ground cover and other around the perimeter
landscape materials. of the facility.
d. Evidence that the applicant has
investigated the possibilities for
locating the proposed facilities on
an existing tower: Such evidence
shall consist of:
1) A listing of all towers. within a _x_Yes . No There are no other _x _Yes No
%Z-mile (for towers shorter than.. telecommunication towers
200 feet) or 1-mile (for towers within 1 mile of this site.
200 feet or taller) radius of the
proposed tower site.. .
2) Delineation of the boundaries of According to the application
the maximum search range within there are no towers within the
which the tower equipment can- search range.
function as intended. The following
information shall be provided for all -
existing towers within the search
range:
(a} Tower height, as measured from Yes No Yes No
the ground to the highest point x N/A x N/A
of the support structure;
(b) Existing and planned tower Yes No Yes No
usars; _x_N/A _x_N!A
y1
.~
ti•
28
PLANNING
BOARD
RECOMMENDED
FINDINGS
(c) Whether the existing tower Yes No
could accommodate the antenna _ x_N/A
to be attached to the proposed
tower without causing structural
instability or radio frequency
interference; and
(d) If the proposed antenna cannot Yes No
be accommodated on the x N/A
existing tower, assess whether
the existing tower could be
structurally strengthened or
whether the antennas
transmitters and related equipment
could be protected from
electromagnetic interference, and
generally describe the means and
projected cost of shared use of the
existing tower; and
3) A summary explanation. of why Yes No
proposed facilities cannot be x' N/A
located on any of the existing.
towers in the search range.
EVIDENCE SUBMITTED
_ TO SUPPORT FINDINGS
BOARD OF
COMMISSIONERS
FINDINGS
Yes No
x N/A
Yes No
x N/A
Yes No
x N/A
e. Documentation from applicable state x Yes No The Tower will be a light x Yes No
or federal agencies indicating steel gray. The application
requirements which affect the appearance indicated lighting will be as
of the proposed tower, such as required by the FAA- white strobe
lighting and coloring. at daytime and red blinking at night.
f. Draft .letter of credit which will x Yes No
.guarantee the removal of the tower
in the event that it is abandoned oc
unused for a period of 12 months.
g.A listing of all property owners within x Yes No
1000 feet of the parcel shall be
provided. Each property owner shall
be notified of the public hearing in
accordance with Article :2.3.3.4
(Class B Special Use Permit) or
Article 8.4.5 (Class A Special Use
.Permit) of this Ordinance.
A draft bond has been x Yes No
.submitted and is being
reviewed by the County Attorney.
If the permit had been approved, a
condition of approval would have
been added regarding security
for removal of the tower.
A listing of property owners was x Yes No
provided and each property
owner received notification:
h. Photographs of aclearly-visible balloon Yes x_No
floated at the proposed tower location
to the maximum height of the towers.
Photographs shall be taken from
locations such as: property lines,
and/or nearby residential areas, historic
sites, roadways, including scenic roads
and major view corridors, and other
locations as deemed necessary by the
Planning Staff to assess the visual impact
Photographs Yes x No
submitted by the applicant
do not meet required parameters
to ..determine the visual impact of
the proposed tower to nearby
residential deve6obment.
4
~`'}
of the proposed tower.
PLANNING
BOARD
RECOMMENDED
FINDINGS
i. The Special Use Permit application shall _x Yes No
include a statement that the facility
and its equipment will comply with all
federal, state and local emission
requirements.
(-._
EVIDENCE SUBMITTED
TO SUPPORT FINDINGS
The application indicates
compliance with all
federal, state and local
emission requirements.
.e ~~
29
BOARD OF
COMMISSIONERS
FINDINGS
_x_Yes No
30
PLANNING
BOARD
RECOMMENDED
FINDINGS
8.8.17a.2 Standards of Evaluation
The following specific standards shall
be used in deciding upon an application
for approval:
a. Adjacent to residential zoning
districts, minimum setbacks from
the base of the tower to the
property boundary shall be equal
to the height of the tower. The
setback may be reduced to no less
than one-half of the tower height if
easements for the remaining setback
distance are granted by adjoining
property owners.
b.Adjacent to non-residential
uses or non-residential zoning
districts, minimum setbacks
from the base of the tower to the
property boundary shall be the greater
of 20% of the tower height, or the
minimum required setback.
_x_Yes No
N/A
_x_Yes No
NJA
c. A Type C Landscape Buffer shall x Yes
be provided between the tower and
adjoining property. Existing vegetation
may be removed only to the extent
necessary to accommodate the tower,
equipment buildings, and support
structures such as guy wires.
EVIDENCE SUBMITTED
TO SUPPORT FINDINGS
The site plan indicates
the closest property line
is 250 feet from
the tower. The tower is
proposed to be 230 feet
in height.
The tower is 250 feet from
non-residential uses.
No A Type C Landscape Buffer
will be provided around the
base of the tower facility.
• Exi"sting vegetation will only
be disturbed to accommodate
the tower and entrance road.
d.The site plan shall indicate a location x Yes No
for at least one equipment building
in addition to that proposed for use by
the applicant.
e. Security fencing is provided around the x Yes No
perimeter of the site.
f. The telecommunications equipment
planned for the proposed tower cannot
be accommodated on an existing tower
due to one or more of the following ,
reasons:
1. The planned equipment would Yes No
exceed the structural capacity _ x_N/A
of existing .and approved towers,
considering existing and planned
use of those towers and the towers
cannot be reinforced to accommodate
planned or equivalent equipment
at a reasonable cost.
The site plan indicates an
area reserved for this purpose.
BOARD OF
COMMISSIONERS
FINDINGS
x Yes No
N/A
_x_Yes No
NIA
_x_Yes No
_x_Yes No
An 7 foot chain link security _x_Yes No
fence is indicated around
the site.
'~t
.~
Yes No
x N/A
31
. PLANNING
' BOARD BOARD OF
RECOMMENDED EVIDENCE SUBMITTED COMMISSIONERS
FINDINGS TO SUPPORT FINDINGS FINDINGS
2. The planned equipment Yes No Yes No
would cause radio frequency _ x_N/A x N/A
interference with other
existing or planned equipment
for these towers, and the '.
interference cannot be prevented
at a reasonable cost.
3. Existing or approved towers do Yes No
not have space on which the _x_N/A
equipment can be placed so it can
function effectively and
reasonably in parity with similar
existing or approved equipment.
4. No tower or other suitable facility _x_Yes No
exists in an area where the
equipment to be placed on the
tower will function in its intended
manner.
g)The Communications tower is _x_Yes No
structurally designed to support at
least one additional user, and the
Special Use Permit includes a
statement that owner of the tower
is willing to permit other user(s)
to attach communication facilities
which do not interfere with the primary
purpose of the tower, provided that
such other users agree to negotiate
a reasonable compensation to the
owner from such liability as may result
from such attachment.
h)The color of the tower is of light tone, _x Yes No
except to the extent required by
law, so as to minimize its visual
impact. .
i) The towers will not be artificially x Yes
lighted unless required by the FAA,
FCC or other federal or state agency.
Where such agencies allow a choice
between painting the tower or installing
strobe lighting, painting shall be the
.preferred choice.
Yes No
x_N/A
The application indicates x Yes No
there are no other towers N/A
or facilities available.
The application indicates _x_Yes No
the tower will structurally
be able to accommodate
additional users.
The application indicates
the tower will be a light
steel gray.
_x_Yes No
No The application indicates the
tower will be lit as required
by the FAA- with white strobe
during the day and red blinking
at night.
j) The tower and antenna will not result x_Yes No
in a significant adverse impact on the NIA
view of or from any historic, site,
~ scenic road; or major view corridor.
_x_Yes No
The application indicates the x_Yes No
tower and antenna will not N/A
result in a significant adverse
impact on the view of or from any
historic site, scenic road or major
view corridor. ~'I~~ere are existing
trees around the .proposed site.
k) All abandoned communication towers
shall be removed within 12 months
of the cessation of use. A bond or
other security guaranteeing the
removal of the tower in the event that
it is abandoned or unused for a period
of 12 months shall be posted. A cost
estimate shall be provided by a qualified
contractor. The amount of the security
shall be 110 percent of the estimate.
q 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.
32
PLANNING
BOARD BOARD OF
RECOMMENDED EVIDENCE SUBMITTED COMMISSIONERS
FINDINGS 70 SUPPORT FINDINGS FINDINGS
_x_Yes No A draft bond has been
x 'Yes No
_
submitted. If the permit had been
approved, a condition of approval
would have been added requiring
security for removal of the tower.
_x_Yes No The application indicates x Yes No
compliance with all federal,
state and local emission
requirements. If the permit
had been approved, a statement to
that effect would be included with
the Special Use Permit.
m)The Special Use Permit shall include _x_Yes
a condition that the electro-magnetic
radiation levels maintain compliance
with requirements of the Federal
Communications Commission,
regarding emission of electromagnetic
radiation. Within 30 days of installation
of equipment on the tower, and within
30 days of the installation of any
additional equipment in the future,
the tower owner shall provide
documentation of emission levels in
relation to FCC standards. In addition,
the tower owner must provide
documentation of emission levels within
five working days if so requested by
Orange County. Orange County may
make such requests at any time, not to
exceed four times per year.
No If the permit had been x_Yes No
approved, a condition
of approval would have
been added that the electro-
magnetic radiation levels
maintain compliance with
requirements of the Federal
Communications Commision
regarding emission of electro-
magnetic radition.
.~ it
4
ARTICLE 8 2 1 & 8.2.2 -APPLICATION COMPONENTS ("Will" indicates compliance; "Will Not" indicates
Non-compliance)
("Is") ("Is Not")
33
PLANNING
BOARD BOARD OF
RECOMMENDED EVIDENCE SUBMITTED COMMISSIONERS
FINDINGS TO SUPPORT FINDINGS FINDINGS
Ordinance Requirements .
In accordance with Article 8.2.1
and 8.2.2 of the Zoning Ordinance,
the Board of Adjustment shall also
consider the following general
conditions before the application
for Special Use shall be approved:
Article 8.2.1 & 8.2.2
1. The use will maintain or promote X Will_Will Not The applicant indicated this _X_Will_Will Not
the public health, safety aril will provide continuous wireless
general welfare, if located service for residences and businesses.
where proposed and developed and It will also provide wireless service
operated according to the plan for 911 and emergency needs.
as submitted.
Article 8.2.1
The use will maintain or enhance _Will_X_Will Not Joseph Smathers,~a real estate Will_X_Will Not
the value of contiguous property broker, submitted an Impact Study
(unless the use is a public and testified that the tower will
necessity, in which case the use not adversely impact the value of surrounding
need not maintain or enhance the properties; Tom Morgan (Morgan & Company ,Inc.),
value of contiguous property). ~ a real estate, appraiser & consultant, submitted an
Impact Study and testified that the proposed tower
will not have an adverse impact on the value of
contiguous property; Owners of nearby property and
owners of contiguous property to the proposed site
testified that, in their opinion, the use will not
maintain nor enhance the value of their property;
Gary Phillips, a real estate broker and consultant,
testified that, in his opinion, the proposed use will
not maintain nor enhance values of contiguous and
nearby property.
Article 8.2.1
3. The location and character of X Is ~Is Not The applicant indicated the tower X_Is _Is Not
the use, if developed according is located next to anon-residential use (a stone
to the plan submitted, will quarry) and that the site is heavily
be in harmony with the area iri wooded. The tower is permitted in
which it is to be located and this zoning district with approval
the use is in compliance with the of a Special Use Permit. The
general plan for the physical Comprehensive Plan does not
development of the County as speak to Cellular Towers.
embodied in these regulations or .
in the Comprehensive Plan, or
portion thereof, adopted by the
Board of County Commissioners;
~~~
~
~Q~l' gyp- / 9- 99
Decision of the Orange County
Board of Commissioners in the matter
of the Class A Special Use Permit
Application SUP-2-98
Pursuant to the September 30, 1999 Order of the Honorable
J.B. Allen, Jr., Judge Presiding over the Superior Court of
Orange County, a copy of which is Exhibit A to this final
decision, the Orange County Board of Commissioners makes this
written decision following the consideration of this matter at
the Board of Commissioners' regular meeting on October 19, 1999.
The Board expressly incorporates and adopts the findings and
conclusions contained in the February 8, 1999 transmittal letter
to Mr. Ken Carter, Real Estate Manager, American Towers, and the
accompanying findings under the column "Board of Commissioners
findings" that are attached to the February 8, 1999 Karen
Lincoln to Ken Carter letter which letter and findings are
Exhibit B to this final decision. The Board further finds, upon
review of the petition for a writ of certiorari and for judicial
review filed on behalf of American Towers, Inc. d/b/a Gearon
Communications and BellSouth Carolinas, PCS Limited Partnership,
paragraphs numbered 5, 6, 7, 8, 9, 10, 17, 18, 30, 31, 32, 33,
34, 35, 36 and 37 of the petition for writ of certiorari and for
judicial review allege facts which were not presented for its
consideration as part of the special use permit application,
including the public hearing on the application. In that respect
paragraphs 30 through 37 allege the existence of. legal
infirmities in Orange County's zoning regulations and violations
of State and federal law which at no time were raised in the
application or during the public hearing process. There is no
reference to any such legal issues in the record in this matter.
Had the matters raised in paragraphs 30 through 37 been
presented to the Board of County Commissioners in American
Towers' application for a special use permit, the Board of
County Commissioners would have concluded that they were not
timely raised, not appropriate for consideration in this special
use permit process or otherwise without merit. These contentions
were not considered by the Board of County Commissioners in its
decision in this matter and are not considered now because they
are not before the Board of Commissioners of Orange County.
After review of American Towers, Inc.'s application for a
Class A Special Use Permit to construct a telecommunications
tower in Orange County, conducting a public hearing on the
application, and listening to evidence submitted by and on
behalf of American Towers and by and on behalf of parties in
opposition to the granting of the permit, the Orange County
Board of Commissioners makes the following findings of fact:
1. Neither the applicant nor those speaking in favor and
against the application objected to the evidence
presented at the public hearing.
2. Article 8.6 of the Orange County Zoning Ordinance
requires that an application for a Class A Special Use
Permit be submitted on forms which provide a full and
accurate description of the proposed use, including
location, appearance and operational characteristics.
The Board -finds that a complete application on
appropriate forms has been submitted.
3. Article 8.8(a) of the Orange County Zoning Ordinance
requires that twenty-six copies of the site plan of the
proposed special use be prepared by a registered land
surveyor, architect, or engineer. The Board finds that
twenty-six copies of the site plan, prepared by O'Brien
and Gere, have been submitted.
4. Article 8.8 (b) of the Orange County Zoning Ordinance
requires that the site plan indicate the elevations of
all proposed structures to be used in the development.
The Board finds that the elevations of all proposed
structures in the application are indicated on the site
plan.
5. Article 8.8 (c) of the Orange County Zoning Ordinance
requires that applicants for a special use permit pay a
fee, as set by the Board of County Commissioners. The
Board finds that the application fee has been paid for
American Towers' application.
6. Article 5 of the Orange County Zoning Ordinance lists
standards for minimum lot size, lot width, front, side
and rear setbacks, maximum building height and lot
coverage, and development intensity. American Towers
applied for a Special Use Permit for property zoned Rural
Buffer. The standards for Rural Buffer are listed below,
with the Board's findings in regards to each:
a) The minimum lot area per dwelling unit in a RB
district is two (2.00) acres. The Board finds
that the applicant proposes to locate the special
use on a 2.77-acre tract (120,661.2 square feet).
2
The applicant proposes to subdivide an existing
30.51-acre tract (Tax Parcel 6.28.9P) to create
the 2.77-acre tract. This subdivision
application has not been approved by Orange
County. The 2.77 acre subdivided tract, if
approved, will meet the minimum lot size required
by the RB district.
b) The minimum lot width in a RB district is 150
feet. The Board finds that the lot is
r approximately 348 feet in width.
c) The required front setback in a RB district is 40
feet. The Board finds that the proposed tower is
approximately 125 feet from the front property
line.
d) The required side and rear setbacks in a RB
district are 20 feet. The Board finds that the
closest proposed structure is approximately 125
feet from the side or rear property line.
e) The maximum building height in a RB district is
25 feet. The Board finds that the proposed
building cabinet height is 5.25 feet.
7. Article 6 of the Orange County Zoning Ordinance lists
specific standards that apply to various types of
development applications. Article 6.12 contains those
development intensity standards that apply to group
developments controlled by the Land Use Intensity (LUI)
system. These standards are listed below, with the
Board's findings for each:
a) The maximum floor ratio for this development is
0.088. To determine the maximum square footage in a
development, the fallowing equation is used:
.088 x total square feet of property = maximum amount of
floor space that
can be used
In this case, the result of this calculation is
10,618 square feet of usable floor space. The Board
finds that the proposed maximum floor area is 1500
square feet, which is below this limit.
b) Article 6.12 requires a minimum open space ratio of
0.84, which in this project translates to a required
minimum open space of 101,355 square feet. The
Board finds that the site plan indicates 109,360
square feet of open space.
c) The site must have a minimum pedestrian/landscape
ratio of 0.21. In this project that translates into
3
a required minimum pedestrian/landscape space of
25,339 square feet. The Board finds that the site
plan indicates 103,800 square feet of
pedestrian/landscape space.
B. Article 8.2.4 of the Orange County Zoning Ordinance
requires:
a) that applicants for a special use permit show the
methods and adequacy of provisions for sewage
disposal facilities, solid waste and water service.
The Board finds that the site will not be a staffed
facility, and therefore water and sewer disposal
facilities will not be necessary.
b) that an applicant for a special use permit show the
method and adequacy of police, fire and rescue squad
protection. The Board finds that fire protection
for the proposed tower site would be provided by
Orange Grave Fire Department; rescue service by
Orange County Emergency Management; and police
protection by the Orange County Sheriff's
Department.
c) that an applicant for a special use permit show the
method and adequacy of vehicle access to the site
and traffic conditions around the site. The Board
finds that the site plan indicates a 12-foot access
drive that leads out to N.C. 54.
9. Article 8.8.17a of the Orange County Zoning Ordinance
sets out specific requirements which must be submitted as
part of an application a telecommunications tower as a
special use.
a) A site plan must be submitted, showing site and size
of all existing structures within 500 feet of the
site, existing and proposed topography at a contour
interval of five feet and any officially designated
floodways and floodplains, or the presence of
alluvial soils. The Board finds that the site plan
shows the structures along with topography. The
Board further finds that there are no floodways,
floodplains or alluvial soils indicated on the plan.
b) Plans, and elevations for all proposed structures
and descriptions of the color and nature of all
exterior material. The Board finds that the
application indicates there will be one equipment
cabinet, and that the proposed tower will be a light
steel gray.
4
c) A landscape plan showing, at the same scale as the
site plan, existing and proposed trees, plus shrubs,
ground cover and other landscape materials. The
Board finds that a site and landscape plan has been
submitted. The Board also finds that existing
vegetation would be maintained around the perimeter
of the facility.
d) Evidence that the applicant has investigated the
possibilities for locating the proposed facilities
ion an existing tower. The applicant must provide a
listing of all towers within a ~ mile (for towers
shorter than 200 feet) or 1 mile (for towers 200
feet or•taller) radius of the proposed tower site.
The Board finds that there are no other
telecommunications towers within 1 mile of this
site.
e) Documentation from applicable state or federal
agencies indicating requirements which affect the
appearance of the proposed tower, such as lighting
and coloring. The Board finds that the proposed
tower will be a light steel gray, and that the
indicated lighting will be as required by the FAA,
with white strobe at daytime and red blinking at
night.
f) Draft letter of credit which will guarantee the
removal of the tower in the event that it is
abandoned or unused for a period of twelve months.
The Board finds that a draft bond was submitted by
American Towers and was submitted for review to the
County Attorney. If the permit had been approved, a
condition of approval would have been added
regarding security for removal of the tower.
g) A listing of all property owners within 1000 feet .of
the parcel to be the site of the tower, and
notification to each of those property owners of the
public hearing on the special use. The Board finds
that a listing of property owners was provided and
that each property owner received notification.
h) Photographs of clearly visible balloons floated at
the proposed tower location to the maximum height of
the towers. Photographs should be taken from
locations such as: property lines, and/or nearby
residential areas, historic sites, roadways,
including scenic roads and major view corridors, and
other locations as deemed necessary by the Planning
Staff to assess the visual impact. The Board finds
that the applicant, American Towers, did not meet
5
this requirement. The Board finds that the
photographs submitted by the applicant do not meet
required parameters to determine the visual impact
of the proposed tower to nearby residential
development.
i) 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. The Board finds that the application
vindicates compliance with all federal, state and
local emission requirements.
10. Article 8.8.17a.2 of the Orange County Zoning
Ordinance sets out specific standards to be used in
deciding upon an application for approval of a special
use permit for a telecommunications tower. The standards
to be used include:
a) Adjacent to residential zoning districts, minimum
setbacks from the base of the tower to the property
boundary shall be equal to the height of the tower.
The setback may be reduced to no less than one-half
of the tower height if easements for the remaining
setback distance are granted by adjoining property
owners. The Board finds that the site plan
indicates that the closest property line is 250 feet
away from the tower. The tower is proposed to be
230 feet in height.
b) Adjacent to non-residential uses or non-residential
zoning districts, minimum setbacks from the base of
the tower to the property boundary shall be the
greater of 20% of the tower height, or the minimum
required setback. The Board finds that the proposed
tower is 250 feet from non-residential uses.
c) A Type C Landscape Buffer shall be provided between
the tower and adjoining property. Existing
vegetation may be removed only to the extent
necessary to accommodate the tower, equipment
buildings, and support structures such as guy wires.
The Board finds that a Type C Landscape Buffer will
be provided around the base of the tower facility.
The Board further finds that existing vegetation
will be disturbed only to accommodate the tower and
entrance road.
d) The site plan shall indicate a location for at least
one equipment building in addition to that proposed
for use by the applicant. The Board finds that the
6
site plan indicates an area reserved for that
purpose.
e) Security fencing is to be provided around the
perimeter of the site. The Board finds that a 7-
foot chain link security fence is indicated around
the site.
f) The communications tower is structurally designed to
support at least one additional user, and the
special use permit includes a statement that the
Fowner of the tower is willing to permit other
user(s) to attach communication facilities which do
not interfere with the primary purpose of the tower,
provided that such other users agree to negotiate a
reasonable compensation to the owner from such
liability as may result from such attachment. The
Board finds that the tower will be structurally able
to accommodate additional users.
g) The color of the tower is of light tone, except to
the extent required by law, so as to minimize its
visual impact. The Board finds that the tower will
be a light steel gray, which will minimize its
visual impact.
h) The tower will not be artificially lighted unless
required by the FAA, FCC, or other federal or state
agency. Where such agencies allow a choice between
painting the tower or installing strobe lighting,
painting shall be the preferred choice. The Board
finds that the tower will be lit as required by the
FAA, with white strobe lights during the day and red
blinking lights at night.
i) The tower and antenna will not result in a
significant adverse impact on the view of or from
any historic sight, scenic road, or major view
corridor. The Board finds that 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. The Board
further finds that there _are existing trees around
the proposed site.
j) All abandoned communications towers must be removed
within 12 months of the cessation of use. A bond or
other security guaranteeing the removal of the tower
in the event that it is abandoned or unused for a
period of twelve months shall be posted. A cost
estimate shall be provided by a qualified
contractor. The amount of the security shall be 110
percent of the estimate. The Board finds that a
7
draft bond has been submitted. If the permit had
been approved, a condition of approval would have
been added requiring security for removal of the
tower.
k) 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,
istate and local emission requirements. The Board
finds that the proposed tower would comply with all
federal, state and local emission requirements.
1) The special use permit shall include a condition
that the electromagnetic radiation levels maintain
compliance with requirements of the Federal
Communications Commission, regarding emission of
electromagnetic radiation. Within 30 days of
installation of equipment on the tower, and within
30 days of the installation of any additional
equipment in the future, the tower owner shall
provide documentation of emission levels in relation
to FCC standards. In addition, the tower owner must
provide documentation of emission levels within five
working days if so requested by Orange County.
Orange County may make such requests at any time,
not to exceed four times per year. The Board finds
that, if the permit had been appraved, a condition
of approval would have been added that the
electromagnetic radiation levels maintain compliance
with requirements of the Federal Communications
Commission regarding emission of electromagnetic
radiation.
11. Articles 8.1.1 and 8.2.2 of the Orange County Zoning
Ordinance further require that prior to the approval of
a special use permit application, the applicant prove
that the use will maintain or promote the public health,
... safety and general welfare, if located where proposed
and developed and operated according to the plan as
submitted. The Board finds that the proposed tower will
provide continuous wireless services for residences and
businesses. The Board further finds that the tower will
provide wireless service to 911 and other emergency
needs.
12. Article 8.2.1 of the Orange County Zoning Ordinance
requires that prior to the approval of a special use
8
permit application, the applicant prove that the use
will 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). The Board finds that the
applicant, American Towers, has not met this
requirement.
The Board heard testimony from American Towers on this
issue. American Towers presented the testimony of two
witnesses on valuation. One was a certified real estate
appraiser; the other a real estate valuation specialist.
Both testified that, in their opinion, the tower would
have no impact on the value of contiguous property.
These opinions were based on separate studies. The real
estate appraiser, Winston T. Morgan, compared the
Greenfield Road neighborhood to the Turkey Run
subdivision. Mr. Morgan testified that there had been
no decrease in value of the homes in the Turkey Run
subdivision, which has three towers near it. [Record, 2-
12. The real estate valuation specialist, Joseph
Smathers, Jr., compared a neighborhood with towers,
Wildwood Subdivision, to one without, Cornwallis Hills
Subdivision. Mr. Smathers concluded that the existence
of telecommunications towers in close proximity to
Wildwood had a minimal negative effect on the value of
the homes in the Wildwood neighborhood. [Record,
Smathers Report, Conclusions.] He stated, at the
hearing, that studies conducted by him have indicated
that a tower structure does not "generally impact on the
property values of surrounding property." [Record, 5-10.
Emphasis added.]
The Board also heard evidence from landowners on the
issue of valuation. These citizens offered testimony to
point out weaknesses in the methods and conclusions of
both Morgan and Smathers. The Board heard evidence at
its meeting on November 17th, 1998 that Morgan was
_ trying to compare incomparable neighborhoods. Russ
Townsley testified that the comparison of these two
neighborhoods was inappropriate because Greenfield Road
currently has no nearby telecommunications towers nor
any above ground utility wires, while Turkey Run was
constructed after the location of the nearby towers.
Thus, he stated, there would not be a period in the life
of the Turkey Run subdivision pre-tower to compare to
Greenfield Road. [Record, 2-8.]
9
The Board also heard testimony that Smathers' report was
inconclusive because of a lack of similarity between
Wildwood and Greenfield Road. For example, the average
lot size on Greenfield Road is one acre, as compared to
1/, acre in Wildwood; Greenfield has restrictive covenants
that prohibit aboveground wires, while Wildwood does
not. Based on these differences, it was argued,
Smathers' report does not prove that the proposed tower
would not diminish property values. [Record, 2-8, 2-13.]
Contiguous property owners who testified before the
Board on this issue were:
Russ Tovmsley testified that he and other contiguous
landowners think that the tower would diminish the
value of their properties. He testified that the
impact report submitted by American Towers was
flawed, in that it did not take into account market
conditions, improvements to the homes, and
differences between the comparison neighborhoods and
Greenfield Road homes. Townsley also distributed
photographs to the Board which show the natural
setting of the homes on Greenfield Road, that power
lines are buried, and that trees grow up to the
street. He testified that this shows that a 235'
tower would not be in harmony with Greenfield Road.
Mr. Townsley also testified that American Towers'
contention that no cellular service was available in
the Highway 54 West area was false. To prove this
he submitted a taped recording of cellular phone
calls made in the area in question. The tape also
showed that both analog and digital signals were
available on Highway 54 going West from Carrboro.
[Record, 2-8,9.]
Jon Webster testified that he and his wife had
purchased their home on Greenfield Road a year ago,
and that they might not have if they had known that
a tower would be located close by. Webster
testified that the existing vegetation in the
neighborhood would be inadequate to obscure a
blinking tower. [Record, 2-9.]
Rakhski Khan testified that if the tower went up in
its proposed site, 500 feet from her back deck, her
property would not be worth the same to her anymore.
She testified that she never would have purchased
10
her home in 1992 if the tower had been there. She
further testified that the tower would not be in
harmony with the homes and other property on
Greenfield Road. Ms. Khan also submitted to the
Board a letter from another neighbor who was unable
to attend, Dr. Bryant Cook. Mr. Cook's letter said
that he strongly opposed the cellular tower because
it would be unattractive and would have a negative
impact on both the financial and personal value of
=the properties in the Greenfield Road area. [Record,
2-9, 10. ]
Jan (sic) Scallion (Scanlon) testified that since
she moved to Greenfield Road two years ago, she has
worked to improve her property in various ways, and
that in the last two years the value of her home has
gone up 200. She testified that the tower would
make the value of her home, as well as the homes of
others, go down. [Record, 2-10.]
Amanda Stipe testified that she is an animal control
officer for Carrboro, and that she is satisfied with
using radios. She testified that she does not
believe the tower would maintain or promote the
public health, safety and general welfare, as
required by the Ordinance. [Record, 2-10.]
Fred Stipe testified that he is the co-president of
the homeowners association and strongly opposes the
tower. Stipe testified that almost all of the trees
in the Greenfield Road area are deciduous, and would
not block the view of the tower once the leaves
fell. He testified that the neighborhood has
restrictive covenants which requires buried utility
lines and has a strong emphasis on neighborhood
appearances. The proposed tower would have a very
negative effect on the neighborhood appearance. He
also testified that common sense tells you that a
blinking, 230 foot tower would have a negative
impact on property values. [Record, 2-10,11.]
The Board also received into evidence photographs which
were submitted to show the character of the residential
neighborhood that would be directly impacted by the
proposed tower. These photographs further showed the
deciduous tree cover and illustrated the contentions of
the citizens speaking about the visual and aesthetic
11
impact the tower would have on their neighborhood.
[Record, 2-8 (a) , 2-8 (b) , 2-8 (c) , 2-8 (d) , 2-8 (e) . ]
The Board also heard evidence from Chris Braun, who
works with Orange County Emergency Management Service.
Braun testified that, although American Towers contends
cellular services are needed by EMS and other emergency
services, cellular phones have not been used in the
seven years that he has been a paramedic. Braun
testified that radios are preferred by emergency
officials such as the Durham EMT Department, and that
they do not plan to start using cellular phones. Braun
also testif~.ed that he had seen a recent employee memo
from the hospital where he works and that the hospital
would be implementing a policy discouraging the use of
cell phones because they interfered with patient
equipment. [Record, 2-9.]
The Board heard evidence from Gary Phillips, a real
estate consultant and land planner, who testified an the
issue of maintaining property values and on the issue of
harmony with the area where the special use is proposed
to be located. Phillips testified that both the
Smathers and Morgan studies were seriously flawed, and
only served to demonstrate that all property values in
the area have risen in the past few years. Phillips
also stated that he had experience with selling lots in
the vicinity of a tower in the Ode Turner Road area near
Hillsborough, and that that tower had made it difficult
to sell those lots around the tower. The prices for the
lots closer to that tower were 25-300 lower than the
prices for lots away from the tower. He testified that,
in his opinion, American Towers had failed to show that
it complied with all of the requirements of the Orange
County Zoning Ordinance; American Towers' evidence did
not prove that its proposed tower use would maintain or
enhance the value of the contiguous property; and had
failed to provide evidence that it would be in harmony
with the area in which it would be located. [Record, 2-
13.]
After hearing all of the evidence submitted by both the
applicant and those in opposition to the tower, on this
issue, the Board finds that the tower will not maintain
or enhance the value of contiguous properties.
12
13. Article 8.2.1 of the Orange County Zoning Ordinance
requires that an applicant for a special use permit
demonstrate that the location and character of the use,
if developed according to the plan submitted, will be in
harmony with the area in which it is to be located and
the use is in compliance with the general 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.
ThesBoard finds that that tower is to be located next to
a non-residential use (stone quarry), and that the site
is heavily wooded. The Board further finds that the
Orange County Comprehensive Plan does not speak to
cellular (telecommunications) towers.
Based on the foregoing findings of fact the Board of
Commissioners of Orange County concludes as a matter of law that
the applicant, American Towers, Inc. d/b/a Gearon
Communications, failed to satisfy the requirements of Orange
County zoning regulations for a telecommunications tower special
use permit. Therefore, American Towers' Class A Special Use
Permit, Application SUP-2-98 is denied. This decision was
rendered by the Board of Commissioners initially on February 2,
1999 and amplified to comply with the September 30, 1999 Order
of the Honorable J.B. Allen, Jr., Judge Presiding over the
Superior Court of Orange County.
I, Beverly A. Blythe, County Clerk of Orange County, North
Carolina, do hereby certify that the foregoing is the decision
of the Orange County Board of Commissioners concerning the
application for a telecommunications tower in SUP-2-98.
~T/~E/SS my hand and the s~e/a~l of said/C~ounty, this ~~ day
o f ~/~':~1~ 2s'' 19 9 9 . mar/ ~ / . / .~ /~~
Cle`r~c to th~oard of Commissioners
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Exhibit A
r~ ~~. ;L,i i.1 `~• L.J.C.
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AMERICP.N TOWERS, INC. d/b/a ~)
GEA_RON COMMUNICATIONS and )t-' '~-~_
BELLSOUTH CAROLINAS PCS )
LIMITED PARTNERSHIP, )
Petitioner, )
v. )
ORDER
ORANGE COUNTY, NORTH )
CAROLINA and MARGARET BROWN, )
STEPHEN HALKIOTIS, BP..RRY )
JACOBS, MOSES CAREY, JR. and )
ALICE GORDON, in their )
official capacities as members)
of the Orange County Board )
of County Commissioners, )
Respondent. )
STATE OF NORTH CAROLINA IN T~~~GRAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF ORANGE o; C.i ~ ~~ (~~~' ~`•919-CVS-363
THIS CAUSE coming on to be heard before the Honorable J.B.
Allen, Jr., Judge Presiding over the Superior Court of Orange
County on September 27, 1999. M. Gray Styers, Jr. appeared on
behalf of the Petitioner, American Towers, Inc. d/b/a Gearon
Communications and BellSouth Carolinas PCS Limited Partnership;
Geoffrey E. Gledhill appeared on behalf of Respondent, Orange
County, North Carolina and Margaret Brown, Stephen Halkiotis,
William Crowther, Moses Carey, Jr. and Alice Gordon in their
official capacities as members of the Orange County Board of
County Commissioners. This matter is an appeal of a decision by
r . .
the Orange County Board of Commissioners to deny the Petitioner
American Towers, Inc.'s application for a special use permit to
site a telecommunications tower in the zoning jurisdiction of
Orange County.
Counsel for the Petitioner and the Respondent thereupon
verbally presented the following stipulations to the court:
1. The Record in this matter, including the amendment to
it, is timely filed.
2. Barry Jacobs is added as a respondent, in his official
capacity as a member of the Board of Commissioners of Orange
County; and, William Crowther, in his official capacity as a
member of the Board of Commissioners of Orange County, is
deleted as a respondent.
3. This Order may be entered out of session, out of
county and out of term as provided by law.
After hearing argument of counsel and a statement from
counsel that they had no objection to this order:
IT IS ORDERED, ADJUDGED AND DECREED:
1. The Record in this matter, including the amendment to
it, is timely filed.
2. Barry Jacobs is added as~a respondent, in his official
capacity as a member of the Board of Commissioners of Orange
County; and, William Crowther, in his official capacity as a
member of the Board of Commissioners of Orange County, is
deleted as a respondent.
3. In its discretion, the Court further orders that this
matter be and it is hereby remanded to the Orange County Board
of Commissioners for a written decision which makes findings of
fact as to specific evidence introduced at the public hearing on
this application for a special use permit and makes any
necessary conclusions of law.
~IT IS FURTHER ORDERED, P.DJUDGED A.ND DECREED that this
matter is to be placed on the Orange County Superior Court
calendar to be heard at 10:00 a.m., October 25, 1999 or as soon
thereafter as it can be heard. The written decision of the
Orange County Board of Commissioners to be filed with the Court
in response to this remand shall be filed and served on counsel
for the Petitioner no later than 24 hours before the October 25,
1999 hearing on this matter.
This the 27`h day of September, 1999. '
Signed this the ~ day of ~ 1999•
The ono able J~r Allen, Jr.
Ju e Presiding
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Exhibit B
.---.
ORANGE COUNTY PLANN]CNG DEPARTMENT
306F REVERE ROAD
HILLSBOROUGH, NORTH CAROLINA 27278
February 8, 1999
Mr. Ken Carter Real Estate Manager
American Tower
3016 Hillsborough Street
Suite 201
Raleigh, North Carolina 27607
u° ss
`~ '~ F E B 1 1 1999
'~+~ e.++`~`~
Re: Action of the Orange County Board of Commissioners in the Matter of the
Class A Special Use Permit Application SUP-2-98
Dear Mr. Carter:
On February 2, 1999, the Orange County
above referenced Special Use Permi
telecommunications tower, an equipment
telecommunication carriers on property ow
N.C. 54 in Bingham Township (Tax Map No
Board of Commissioners voted to deny the
t application to ~ construct a 230 foot
cabinet, and an area for future additional
ned by Philip.and Alice Durham located on
. 28..9P).
Based on evidence presented at the public hearing held August 24,1998, and resumed
on November 17, 1998, the Board concluded that the applicant did not satisfy its burden
of establishing, by competent material and substantial evidence, the existence of the
facts and conditions required by Article 8, Section 8.8.17a.1 (d)(2)(h) and Article 8,
Section 8.2.1(b)(2) of the Orange County Zoning Ordinance. Findings of fact of the
Orange County Board of Commissioners are enclosed. .
With respect to Article 8, Section 8.8.17a.1 (d)(2)(h), photographs submitted by the
applicant do not meet the required parameters to determine the visual impact of the
proposed tower to nearby residential development.
With respect to Article 8, Section 8.2.1(b)(2), the reports by Joseph Smothers, Jr. and
an Impact Study by Morgan & Company, Inc., do not furnish information relating to the
proximity (distance) from existing towers of properties used in the analyses nor compare
those distances with proximity of the proposed tower to properties on Greenfield Road.
Those reports do not compare sales (market values) . of the properties before
construction of a tower with sales (market values) of the properties after construction of
a tower; nor do those reports provide any comparison of properties within an area
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~' Mr. Ken Carter, American Tower
February 8, 1999
Page 2 .
impacted by a tower with respect to sales of properties in closest proximity (for example,
those that are contiguous) to the tower (or properties where the tower is most visible)
with sales of properties farthest from the tower (or properties from which the tower is not
very visible}.
This decision of the Board of County Commissioners has been filed in the office of the
Zoning Officer on the date of this letter.
You may appeal the decision of the Board of County Commissioners by filing a petition
for writ of certiorari with the Clerk of Superior Court-. The' appeal must be filed within
thirty (30) days of delivery of this notice of the decision to you.
If I may be of further assistance, 1 may be contacted by telephone at (919) 732 8181,
extension 2583.
Sincerely,
Karen Lincoln AICP
Supervisor, Current Planning
cc: Geof Gledhill, County Attorney
Enclosure
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,..;,, ~' ~ FINDINGS OF THE ORANGE COUNTY PLANNING BOARD
• PERTAINING TO GEARON COMMUNICATIONS
' APPLICATION: GEARON COMMUNICATIONS
( O'DAY DRIVE OFF N.C. 54)
Special Uses must comply with general and specific standards as set forth in Article 8. Article 8.2.1 b) requires written
findings certifying compliance with the following:
(1) Specific regulations governing individual Special Uses as set forth in Article 8.8. These regulations are
divided into two (2) section which include:
(a) Application components; and
(b) Specific standards for Special Uses (Article 8.2.4, Article 8.8.17.1 and 8.8.17.2).
(2) Other requirements,as set forth in the Zoning Ordinance, including the provisions of Article 5
(Dimensional Requirements) and Article 6 (Application of Dimensional Requirements).
Listed below are the findings of the Orange County Planning Board regarding the application in question. The findings
have been presented by Article and requirement to assist the Board of Commissioners in its deliberations.
ARTICLE 8.6 AND 8.8_- APPLICATION COMPONENTS ("Yes" indicates compliance; "No" indicates Non-compliance
PLANNING
BOARD BOARD OF
RECOMMENDED EVIDENCE SUBMITTED COMMISSIONERS
FINDINGS TO SUPPORT FINDINGS FINDINGS
Ordinance Requirements
8.6 -Application submitted on forms x Yes No
providing full and accurate description
of proposed use, including location,
appearance and operational
characteristics.
A complete application on
appropriate forms has been-
submitted.
x Yes No
8.8 a) -Twenty six copies of the site _x Yes No
plan prepared by a registered land
surveyor, architect, or engineer.
8.8 b) -Elevations of all proposed ^x Yes No
structures to be used in the development.
8.8 c) - A fee, as set by the Board _x_Yes No
of County Commissioners.
Twenty-six copies of the
site plan, prepared by
O'Brien and Gere
have been submitted.
Elevations are indicated on
the site plan.
The application fee has been
paid.
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_x_Yes No
_x_Yes No
_x Yes. No
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ARTICLE 5 -DIMENSIONAL REQUIREMENTS ("Yes" indicates compliance• "No" indicates Non-compliance
PLANNING
BOARD BOARD OF
RECOMMENDED EVIDENCE SUBMITTED COMMISSIONERS
FINDINGS TO SUPPORT FINDINGS FINDINGS
Ordinance Requirements
Article 5 lists standards for minimum
lot size, lot width, front, side and
rear setbacks, maximym building height
and lot coverage, and development
intensity.
The applicant has applied for a
Special use Permit on property zoned
RB. The standards for the RB district
are set forth in Article 5.1.2 and
are as follows:
a) Minimum lot area per dwelling
unit 40,000 sq. ft.
b) Minimum lat width -
150 feet
c) Required front setback -
40 ff.
d) Required side and rear
setbacks - 20 ft.
e) Maximum building height -
25 ft.
Compliance with lot coverage and
development intensity standards
is addressed in Article 6.
x Yes No There are 2.77 acres _x_Yes No
proposed in the tract.
x Yes No The lot is approximately x Yes No
348 feet in width.
x Yes No The proposed tower is _x_Yes No
approximately 125 feet from
the front property fine.
x Yes No The closest proposed _x_Yes No
structure is approximately
125 feet from the side or rear
property line.
x Yes No The proposed equipment cabinet _x Yes No
height is 5.25 feet. The tower is
indicated as 230 feet.
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ARTICLE 6 -APPLICATION OF DIMENSIONAL REQUIREMENTS
• ("Yes" indicates compliance• "No" indicates Non-compliance)
PLANNING
BOARD
RECOMMENDED
FINDINGS
Ordinance Requirements
Article 6 lists specific standards
which apply to various types of
development applications.
Article 6.12 contains those
development intensity standards -
which apply to group developments
controlled by the Land Use Intensity
(LUI) system.
a) Minimum gross land area -
N/A
b) Maximum gross land area-
N/A
c) Maximum floor ratio -
.088
d) Required minimum open space
ratio - .84
Required minimum open space -
101,355 sq. ft.
e) Required minimum pedestrian/
landscape ratio - .21
Required minimum pedestrian/
landscape space - 25,339 sq. ft.
Note: See Appendix A for "Definitions".
_x_Yes No
_x_Yes No
_x_Yes No
BOARD OF
EVIDENCE SUBMITTED COMMISSIONERS
TO SUPPORT FINDINGS FINDINGS
NIA
N/A
Maximum permitted by _x Yes No
ordinance is 10,618 sq. ft.
Proposed maximum floor area
is 1500 sq. ft.
The site plan indicates x Yes ' No
109,360 sq. ft. of open
space.
The site plan indicates 103,800 _x Yes No
sq. ft. of pedestrian/landscape
space.
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ARTICLE 8 2 4 -SPECIFIC STANDARDS/ALL SPECIAL USES {"Yes" indicates compliance; "No" indicates
' Non-compliance)
PLANNING
BOARD BOARD OF
RECOMMENDED EVIDENCE SUBMITTED COMMISSIONERS
FINDINGS TO SUPPORT FINDINGS FINDINGS
Ordinance Requirements
Article 8.2.4 requires tie applicant
to address the following:
a) Method and adequacy of provision
for sewage disposal facilities,
solid waste and water service. '
b) Method and adequacy of police,
fire and rescue squad protection.
c) Method and adequacy of vehicle
access to the site and traffic
conditions around the site.
x Yes No Applicant indicates the site _x Yes No
• is not a staffed facility,
therefore, water and sewer
disposal facilities are not
necessary.
x Yes No Fire protection will be provided _x_Yes No
by the Orange Grove Fire Department,
rescue service by the Orange
County Emergency Management
and police protection by the
Orange County Sheriff's
Department.
x Yes No The site plan indicates a _x Yes No
12 foot access drive that
leads out to N.C.54.
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ARTICLE 8.8.17a -TELECOMMUNICATION TOWERS 1"Yes" indicates compliance; "No" indicates Non-compliance
PLANNING
BOARD BOARD OF
RECOMMENDED EVIDENCE Sl1BMITTED COMMISSIONERS
FINDINGS TO SUPPORT FINDINGS FINDINGS
Ordinance Requirements
8.8.17a.1 Additional Information
a. A Site Plan showing site and size
of all existing structures within
500 feet of the site,rexisting and
proposed topography at a contour
interval of five feet and any officially
designated floodways and floodplains,
or the presence of alluvial soils. -
b. Plans, and elevations for all
proposed structures and descriptions
of the color and nature of all exterior
material:
x Yes No The site plan shows the
structures along with
topography. There are
no floodways, floodplains or
alluvial soils indicated on the
plan.
x Yes No The application indicates
there will be one equipment
cabinet. The tower will be a
light steel gray.
c. A Landscape Plan showing, at the _x_Yes No
same scale as the Site Plan,
existing and proposed trees, plus
shrubs, ground cover and other
landscape materials.
d. Evidence that the applicant has
investigated the possibilities for
locating the proposed facilities on
an existing tower. Such evidence
shall consist of:
11 A listing of all towers within a
%Z-mile tfor towers shorter than
200 feet) or 1-mile (for towers
200 feet or taller) radius of the
proposed tower site.
2) Delineation of the boundaries of
the maximum search range within
which the tower equipment can
function as intended. The following
information shall be provided for all
existing towers within the search
range:
(a} Tower height, as measured from
the ground to the highest point
of the support structure;
Ib) Existing and planned tower
users;
_x_Yes No
A Site and Landscape Plan
has been submitted. Existing
vegetation will be maintained
around the perimeter
of the facility. •
There are no other
telecommunication towers
within 1 mile of this site.
According to the application
there are no towers within the
search range.
Yes No
x N/A
Yes No
x N/A
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.d
x Yes No
_x_Yes No
_x_Yes No
x Yes No
Yes No
x N/A
Yes No
x NIA
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PLANNING
BOARD
RECOMMENDED
FINDINGS
(c} Whether the existing tower Yes No
could accommodate the antenna ^ x_N/A
to be attached to the proposed
tower without causing structural
instability or radio frequency
interference; and
(d) If the proposed antenna cannot Yes No
be accommodated on the x_N/A
existing tower, assess whether
the existing tower could be
structurally strengthened or '
whether the antennas
transmitters and related equipment
could be protected from
electromagnetic interference, and
generally describe the means and
projected cost of shared use of the
existing tower; and
3) A summary explanation of why _Yes No
proposed facilities cannot be x_N/A
located on any of the existing
towers in the search range.
e. Documentation from applicable state _x_Yes No
or federal agencies indicating
requirements which affect the appearance
of the proposed tower, such as
lighting and coloring.
f. Draft letter of credit which will _x Yes No
guarantee the removal of the tower
in the event that it is abandoned or
unused for a period of 12 months.
g.A listing of all property owners within _x Yes
1000 feet of the parcel shall be
provided. Each property owner shall
be notified of the public hearing in
accordance with Article 2.3.3.4
(Glass B Special Use Permit) or
Article 8.4.5 (Class A Special Use
Permit) of this Ordinance.
h. Photographs of aclearly-visible balloon _
floated at the proposed tower location
to the maximum height of the towers.
Photographs shall be taken from
locations such as: property lines,
and/or nearby residential areas, historic
sites, roadways, including scenic roads
and major view corridors, and other
locations as deemed necessary by the
Planning Staff to assess the visual impact
No
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BOARD OF
EVIDENCE SUBMITTED COMMISSIONERS
TO SUPPORT FINDINGS FINDINGS
Yes No
x N/A
Yes No
x N/A
Yes No
x N/A
The Tower will be a light _x Yes No
steel gray. The application
indicated fighting will be as
required by the FAA- white strobe
at daytime and red blinking at night.
A draft bond has been _x_Yes No
submitted and is being
reviewed by the County Attorney.
If the permit had been approved, a
condition of approval would have
been added regarding security
for removal of the tower.
A listing of property owners was x_Yes _No
provided and each property
owner received notification.
Yes x No Photographs _Yes _x_No
submitted by the applicant
do not meet required parameters
to determine the visual impact of
the proposed tower to nearby
residential develobment.
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of the proposed tower.
PLANNING
BOARD
RECOMMENDED
FINDINGS
EVIDENCE SUBMITTED
TO SUPPORT FINDINGS
BOARD OF
COMMISSIONERS
FINDINGS
i. The Special Use Permit application shall _x_Yes No The application indicates _x_Yes No
include a statement that the facility compliance with all
and its equipment will comply with all federal, state and local
federal, state and local emission emission requirements.
requirements. r
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PLANNING
BOARD BOARD OF
RECOMMENDED EVIDENCE SUBMITTED COMMISSIONERS
FINDINGS TO SUPPORT FINDINGS FINDINGS
8.8.17a.2 Standards of Evaluation
The following specific standards shall
be used in deciding upon an application
for approval:
a. Adjacent to residential zoning _x_Yes No The site plan indicates _x_Yes No
districts, minimum setbacks from N/A the closest property line N/A
the base of the tower to the is 250 feet from
property boundary shall be equal the tower. The tower is
to the height of the tower. The proposed to be 230 feet
setback may be reduced to no less' in height.
than one-half of the tower height if
easements for the remaining setback
distance are granted by adjoining
property owners.
b.Adjacent to non-residential _x Yes No The tower is 250 feet from _x Yes No
uses or non-residential zoning _N/A non-residential uses. N/A
districts, minimum setbacks
from the base of the tower to the
property boundary shall be the greater
of 20% of the tower height, or the
minimum required setback.
c.A Type C Landscape Buffer shall _x Yes No A Type C Landscape Buffer _x Yes No
be provided between the tower and will be provided around the
adjoining property. Existing vegetation base of the tower facility.
may be removed only to the extent Existing vegetation will only
necessary to accommodate the tower, be disturbed to accommodate
equipment buildings, and support the tower and entrance road.
structures such as guy wires.
d.The site plan shall indicate a location _x Yes No The site plan indicates an _x_Yes No
for at least one equipment building area reserved for this purpose.
in addition to that proposed for use by
the applicant. •
e. Security fencing is provided around the _x_Yes No An 7 foot chain link security _x Yes No
perimeter of the site. fence is indicated around
the site.
f. The telecommunications equipment
planned for the proposed tower cannot _
be accommodated on an existing tower
due to one or more of the following ,
reasons:
1. The planned equipment would Yes No Yes No
exceed the structural capacity ^ x_N/A _x_N/A
of existing and approved towers,
considering existing and planned
use of those towers and the towers
cannot be reinforced to accommodate ~
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planned or equivalent equipment •i
at a reasonable cost.
PLANNING
BOARD
RECOMMENDED
FINDINGS
2. The planned equipment
would cause radio frequency
interference with other
existing or planned equipment
for these towers, and the
interference cannot be prevented
at a reasonable cost.
Yes No
x N/A
3. Existing or approved towers do Yes No
not have space on which the _x,N/A
equipment can be placed so it can
function effectively and
reasonably in parity with similar
existing or approved equipment.
4. No tower or other suitable facility _x_Yes No
exists in an area where the
equipment to be placed on the
tower will function in its intended
manner.
g}The Communications tower is _x_Yes
structurally designed to support at
least one additional user, and the
Special Use Permit includes a
statement that owner of the tower
is willing to permit other users}
to attach communication facilities
which do not interfere with the primary
purpose of the tower, provided that
such other users agree to negotiate
a reasonable compensation to the
owner from such liability as may result
from such attachment.
BOARD OF
EVIDENCE SUBMITTED COMMISSIONERS
TO SUPPORT FINDINGS FINDINGS
Yes No
x N/A
Yes No
x N/A
The application indicates _x_Yes No
there are no other towers N/A
or facilities available.
No The application indicates
the tower will structurally
be able to accommodate
additional users.
h)The color of the tower is of light tone, _x_Yes No
except to the extent required by
law, so as to minimize its visual
impact.
i} The towers will not be artificially x Yes No
lighted unless required by the FAA,
FCC or other federal or state agency.
Where such agencies allow a choice
between painting the tower or installing
strobe lighting, painting shall be the
.preferred choice.
j) The tower and antenna will not result _x_Yes No
in a significant adverse impact on the NIA
view of or from any historic, site,
scenic road, or major view corridor.
The application indicates
the tower will be a light
steel gray.
The application indicates the
tower will be lit as required
_by the FAA- with white strobe
during the day and red blinking
at night.
_x_Yes No
x Yes No
x Yes No
The application indicates the _x_Yes No
tower and antenna will not N/A
result in a significant adverse
impact on the view of or from any
historic site, scenic road or major
view corridor. Tl~~ere are existing
trees around the proposed site.
PLANNING
BOARD
RECOMMENDED EVIDENCE SUBMITTED
FINDINGS TO SUPPORT F-NDINGS
k) All abandoned communication towers _x_Yes
shall be removed within 12 months
of the cessation of use. A bond or
other security guaranteeing the
removal of the tower in the event that
it is abandoned or unused for a period
of 12 months shall be posted. A cost
estimate shall be provided by a qualified
contractor. The amount of the security
shall be 110 percent of the estimate.
A determination shall be made that' _x_Yes
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.
m)The Special Use Permit shall include _x_Yes
a condition that the electro-magnetic
radiation levels maintain compliance
with requirements of the Federal
Communications Commission,
regarding emission of electromagnetic
radiation. Within 30 days of installation
of equipment on the tower, and within
30 days of the installation of any
additional equipment in the future,
the tower owner shall provide
documentation of emission levels in
relation to FCC standards. In addition,
the tower owner must provide
documentation of emission levels within
five working days if so requested by
Orange County. Orange County may
make such requests at any time, not to
exceed four times per year. ~.
BOARD OF
COMMISSIONERS
FINDINGS
No A draft bond has been _x_Yes No
submitted. If the permit had been
approved, a condition of approval
would have been added requiring
security for removal of the tower.
No The application indicates _x_Yes
compliance with all federal,
state and local emission
requirements. If the permit
had been approved, a statement to
that effect would be included with
the Special Use Permit.
No If the permit had been _x_Yes
approved, a condition
of approval would have
been added that the electro-
magnetic radiation levels
maintain compliance with
requirements of the Federal
Communications Commision
regarding emission of electro-
magnetic radition.
No
No
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_ARTICLE 8 2 1 & 8 2 2 APPLICATION COMPONENTS ("Will" indicates compliance; "Will Not" indicates
' Non-compliance)
. (.,Is„) ("Is Not")
Ordinance Requirements
In accordance with Article 8.2.1
and 8.2.2 of the Zoning Ordinance,
the Board of Adjustment shall also
consider the following general
conditions before the application
for Special Use shall be approved:
Article 8.2.1 & 8.2.2
1. The use will maintain or promote
the public health, safety and
general welfare, if located
where proposed and developed and
operated according to the plan
as submitted.
Article 8.2.1
The use will 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).
Article 8.2.1
3. The location and character of
the use, if developed according
to the plan submitted, will
be in harmony with the area in
which it is to be located and
the use is in compliance with the
general 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;
PLANNING
BOARD BOARD OF
RECOMMENDED EVIDENCE SUBMITTED COMMISSIONERS
FINDINGS TO SUPPORT FINDINGS FINDINGS
X WiII Will Not The applicant indicated this X_Will_Will Not
will provide continuous wireless
service for residences and businesses.
It will also provide wireless service
for 911 and emergency needs.
WiII X Will Not Joseph Smathers, a real estate _Will_X_Will Not
broker, submitted an Impact Study
and testified that the tower will
not adversely impact the value of surrounding
properties; Tom Morgan (Morgan & Company ,Inc.),
' areal estate appraiser & consultant, submitted an
Impact Study and testified that the proposed tower
will not have an adverse impact on the value of
contiguous property; Owners of nearby property and
owners of contiguous property to the proposed site
testified that, in their opinion, the use will not
maintain nor enhance the value of their property;
Gary Phillips, a real estate broker and consultant,
testified that, in his opinion, the proposed use will
not maintain nor enhance values of contiguous and
nearby property.
X Is Is Not The applicant indicated the tower _X_Is _Is Not
is located next to anon-residential use (a stone
quarry) and that the site is heavily
wooded. The tower is permitted in
this zoning district with approval
of a Special Use Permit. The
Comprehensive Plan does not
speak to Cellular Towers.
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