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Sams, Larkin, Huff, & Balli, LLP on behalf of Municipal Communications
Wireless Telecommunications Tower
Variance - Residential Distance and Landscape Buffer
3215 New Macland Road LL 735
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The law offices of Sams, Larkin, Huff, & Balli, LLP on behalf of Municipal Communications, LLC, at 3215 New Macland Road, Land Lot 725, 19th District
PETITION: Variance to reduce the residential distance from 300’ requirement to 259.9’; and to reduce the landscape buffer requirement from ten (10) foot wide to 0 foot for the construction, operation and maintenance of a Wireless Telecommunication Tower and Facility
Background:
The law offices of Sams, Larkin, Huff, & Balli, LLP on behalf of Municipal Communications, LLC has requested variances from Section 4-415(b) and (c) of the City’s Unified Development Code (UDC) to reduce the residential distance from 300’ requirement to 259.9’, and to reduce the ten (10) foot wide landscape buffer requirement to 7.5 feet in one area and to allow existing vegetation for the construction, operation and maintenance of a Wireless Telecommunication Tower and Facility.
The subject property is located at 3215 New Macland Road, north of the intersection at New Macland and Macedonia Road. The property area is 187,308 sq. ft. and 4.3 acres. The site is a heavily wooded area. Staff notes that a rezoning request from NRC to CRC and a special use approval to allow for construction, operation, and maintenance of a Wireless Telecommunication Tower and Facility are being sought simultaneously with this request.
Currently, the property is zoned Neighborhood Retail Commercial (NRC) and is within an area identified as Neighborhood Activity Center (NAC) in accordance with the Future Land Use Map. Properties surrounding the subject site are both residential and commercial establishments zoned Residential (R20) 20000 sq. ft. and Community Retail Commercial (CRC).
Surrounding Properties:
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|
Existing Land Use |
Zoning |
Future Land Use |
Proposed Future Land Use |
|
Site |
Vacant |
Neighborhood Retail Commercial (NRC) |
Neighborhood Activity Center |
Medium Density Residential |
|
North |
Single Family Residences |
Residential 20,000SF (R20) |
Low Density Residential |
Medium Density Residential |
|
South |
Retail Strip Mall |
Community Retail Commercial (CRC) |
Neighborhood Activity Center |
Retail Commercial |
|
East |
Single Family Residences |
Residential 20,000SF (R20) |
Neighborhood Activity Center/ Low Density Residential |
Low and Medium Density Residential |
|
West |
Single Family Residences |
Residential 20,000SF (R20) and Medium Density Residential |
Neighborhood Activity Center/ Low Density Residential |
Low and Medium Density Residential / Retail Commercial |
On May 26, 2017, Sams, Larkin, Huff, & Balli, represent Municipality Communication, LLC. filed an application to rezone the subject property for the construction, operation, and maintenance of a 170’ wireless telecommunication tower, equipment, and facility in accordance to Table 2-3 of section 2 for Towers and Wireless Telecommunications Facilities, which requires a special use for all wireless facilities.
The facility will be constructed on approximately 0.2296 acres of the 4.3 acre tract of land. The proposed wireless telecommunication tower is to be one hundred and seventy (170) feet high, monopole with ground-mounted communications equipment, and access to the facility on the site. According to the application, space for additional antenna arrays will be approximately ten (10) feet apart with sufficient diameter to accommodate up to (4) tenants within an unmanned 6’ secure fenced compound.
Additionally, the applicant is proposing a 12’ wide gravel access driveway from New Macland Road of the subject property. The proposed 170’ monopole tower will be accessed from the south end of the boundary line of the property to New Macland Road via an easement across the owner’s property.
According to the applicant’s analysis, cellular service coverage from the proposed new tower would have some overlapping with existing cellular sites. However, this is desirable to accomplish “hand-off” from one cell site / tower to the next as a subscriber using their mobile device travels from the area of one cell site to the next. While it maybe possible that other sites or properties near the proposed site could also be suitable tower locations, it is believed that the proposed site is adequate. The proposed height of 170' is an appropriate and suitable height.
The applicant, Municipal Communications LLC, is petitioning to reduce the residential distance from 300’ requirement to 259.9’and to reduce the landscape buffer requirement from ten (10) foot wide to 7.5 feet and to allow existing vegetation to serve as the buffer.
Through review of the rezoning and special use applications, CityScape Consultants Inc. noted the following items requiring a variance -
The proposed site does not meet the required 300-foot setback with respect to residentially zoned properties. There is residentially zoned property west of the proposed towers across New Macland Road (3216 New Macland Road), which is about 259.9 feet from the proposed tower so the Applicant needs a variance from the 300-foot setback standard. The proposed tower is more than 300 feet from all other surrounding residentially zoned parcels.
CityScape inquired to see if the proposed tower could be shifted on the proposed property to eliminate this issue, but shifting away from the 3216 parcel would create spacing issues with other residential parcels in the other direction.
With the recommended height of 160 feet in height and the nearest property edge being 32.6 feet to the south, CityScape recommends the Applicant install breakpoint technology such that should the tower fail structurally, it will not encroach any adjacent properties. This breakpoint should be no more than 30 feet below the top of the tower (just below the lowest future antenna array).
The Applicant is requesting a waiver of the landscape requirements because the Applicant intends to use the existing trees surrounding the compound to meet the planting requirements. However, the Applicant does not provide a grading plan or tree preservation plan to identify which trees are to be removed and saved around the compound. The aerial photography provided by the Applicant shows some trees along the southern property line where the access drive is proposed to be built by the Applicant. If these trees are removed then the ground compound will be visible from the roadway. CityScape recommends the Applicant install an “s-curve” in the access drive with either a different entrance at the compound or at New Macland Road to remove the direct visibility of the compound from the road and especially the residences along the road. In addition to the entrance road modification, it may be necessary to install one or more trees to make the road shift effective.
The southern side of the compound may not be visible from the surrounding public roads or residential properties, but is located behind an existing commercial building. It is also only 7.5 feet in width, not the 10-foot minimum required by §4-415(c) of the Ordinance. However, with the recommended reduction in tower tenants (to three) and likely reduction in needed ground compound size, the Applicant should be able to shift the fencing away from this property by 2.5 feet to avoid the need for a Variance. If adequate plantings do not remain after construction, the Applicant should be required to install appropriate landscaping along this 10-foot southern buffer.
The proposal specifies an adequate 6-foot chain linked fence with barbed wire, but it does not specify the required black vinyl coating the Ordinance states. The Applicant also has the choice of installing a wall.
It is noted that during finalization of this report, it was made known that the Application is now planning on purchasing the land where the ground compound will be located, instead of leasing it, per the plans provided. CityScape does not review such purchase contracts and this information has no impact on the content of Cityscape’s review of the existing application.
Analysis
Review Criteria for Variance
The applicant is requesting variances to two code provisions;
a) Setback from Residential Zoning District - : Sec. 4-415 (a) of Performance and Construction Standards states that towers occupying a lot as a principal use shall at minimum meet the minimum lot size and setback requirements for the zoning district in which the lot is located. Towers shall be a minimum of 300 feet from any residential zoning district. All towers shall be located at least one-half of their height in feet from any public right-of-way. When the tower is on leased property, the setbacks shall apply to the lot of record, not the lease boundaries.
Note - The residentially zoned property located at 3216 New Macland Road has a future land use category of Neighborhood Activity Center.
b) Minimum Landscape Buffer - Sec. 4-415 (b) of Performance and Construction Standards states the visual impacts of a communication tower at the ground level shall be mitigated by landscaping. All towers and accessory structures shall be surrounded on the ground by a minimum ten foot wide landscape strip or buffer that forms a hardy screen dense enough to interrupt vision and shield the base and accessory structures from public view and view from the surrounding properties. The buffer shall consist of evergreens that will reach a minimum height of at least eight feet within three years.
Variance criteria for the two code sections will be analyzed independently below.
Article 14 of the UDC establishes the following standards for considering approval or denial of a variance:
1. Review Criteria: Are there extraordinary and exceptional conditions or practical difficulties pertaining to the particular piece of property in question because of its size, shape or topography?
a) Setback from Residential Zoning District
Response: Staff notes that based on the recommended location, the applicant is proposing to purchase that portion (0.2296 acres) of the subject property for the construction and erection of the proposed wireless telecommunication tower and facility. However, the contract is subject to the approval of the rezoning and special use permit applications. As submitted, the located of the proposed 170’ monopole tower and facility does not meet the required minimum distance to residential areas. Additionally, if the space for the tower is purchased rather than leased, it will not meet the setback requirements above. However, staff notes that based on the independent technical review by Cityscape, it is not possible to relocate the tower on the site meeting all residential distance requirements.
b) Minimum Landscaping requirements
Response: The subject site is heavily dense with bamboo trees ranging from approximately 9’ to 14’ tall. Bamboos are perennial evergreen plants which can grow to towering heights. The bamboo trees also are attractive and an effective visual barrier or buffer to shield the facility from public view and view from the surrounding properties. However, the position of the facility does not allow 10 feet of a vegetative buffer on the south property line.
2. Review Criteria: Would the application of the Development Code to this particular piece of property create an unnecessary hardship?
a) Setback from Residential Zoning District
Response: Staff notes that the residential property located at 3216 New Macland Road has a future land use category of Neighborhood Activity Center which would allow the property to possibly be rezoned to a commercial zoning category in the future. Additionally, the water and sanitation records at this property most likely indicate that the property is vacant. Limiting the construction of the telecommunication tower and the facility to the strict guidance of the performance and construction standards of the UDC may create unnecessary hardship by not allowing the service provider to meet the identified needs.
b) Minimum Landscaping requirements
Response: Requiring the existing bamboo trees to be used for the ten foot landscaping strip or buffer would relatively comply with the provisions of the UDC. If the variance is granted allowing the existing vegetation to remain, staff recommends a condition requiring the applicant to install landscaping at that time. Regarding the southern buffer of the facility, it is located so that only 7.5’ of existing vegetation is possible.
3. Review Criteria: Granting the variance requested will not confer upon the property of the applicant any special privileges that are denied to other properties of the district in which the applicant’s property is located?
a) Setback from Residential Zoning District
Response: Granting the variance will confer upon the property of the applicant a special privilege and could potentially cause an adverse impact on surrounding properties. If a variance is granted to this section, it should be noted that the future land use category and the assumed vacancy of the residential structure were key factors in this decision.
b) Minimum Landscaping requirements
Response: Staff notes the existing density of bamboo trees should be sufficient for the ten foot wide landscaping requirement. However, reduction in the width of the landscape buffer on the south boundary line would confer upon the property of he applicant a special privilege.
4. Review Criteria: The requested variance will be in harmony with the purpose and intent of this development code and will not be injurious to the neighborhood or to the general welfare;
a) Setback from Residential Zoning District
Response: Granting the requested variance will not be in harmony with the purpose and intent of this UDC if the distance requirement to residential areas is reduced. However, according to an independent assessment the proposed site is the most adequate (See Attachment A- Consultant report).
b) Minimum Landscaping requirements
Response: The existing bamboo trees are dense enough for the required ten foot wide landscape strip to interrupt vision and shield the base and accessory structures from public view and view from the surrounding properties. Therefore, it can be in harmony with the purpose and intent of this UDC regulations and requirements for all areas except the southern property line.
5. Review Criteria: The special circumstances are not the result of the actions of the applicant?
a) Setback from Residential Zoning District
Response: While it is possible that other sites or properties near the proposed site could also be suitable tower locations; it is believed that the proposed site is the most adequate (See Attachment A- Consultant report).
b) Minimum Landscaping requirements
Response: By complying with FCC rules and regulations, this project should not be hazardous to the surrounding community. Moreover, the regulations and requirements for siting of all wireless telecommunication equipment and facilities, microwave towers, common carrier towers, cellular, television and radio telecommunications towers and antennae are established in Section 4-415 in the UDC.
6. Review Criteria: The variance requested is the minimum variance that will make possible the proposed use of the land, building, or structure in the use district proposed; and/or
a) Setback from Residential Zoning District
Response: It is staff’s opinion that the distance of separation requested between the proposed use of the land and the adjacent residential areas would be the minimum variance possible for the proposed use in the district proposed.
b) Minimum Landscaping requirements
Response: It is staff’s opinion that the existing evergreens on the subject site are dense enough to meet the ten foot wide landscaping buffer requirement. However, the site must be relocated to allow the minimum width of the landscaping boundary on the south side of the property.
7. Review Criteria: The variance shall not permit a use of land, buildings or structures, which is not permitted by right in the zoning district or overlay district involved.
a) Setback from Residential Zoning District
Response: Staff notes that a rezoning request from NRC to CRC and a special use approval to allow for construction, operation, and maintenance of a Wireless Telecommunication Tower and Facility are being sought simultaneously with this variance request.
b) Minimum Landscaping requirements
Response: It is staff’s opinion that the existing evergreens on the subject site are dense enough to meet the ten foot wide landscaping buffer requirement. If after construction it is determined that the existing vegetation is not sufficient, staff recommends a condition stating that the landscaping area may be supplemented if needed.
Fiscal Impact:
The subject property is located along New Macland Road surrounded by both residential use and commercial permitted establishments. The existing water and sewer services will not require substantial additional services to serve the proposed use. Public facilities are adequate to serve the proposed commercial use. An increase in traffic flow to and from the site is not anticipated by this application.
RECOMMENDATION
Staff notes that the proposed application is not consistent with either the adopted or proposed Future Land Use Map, and does not meet all code requirements such as the requirement for the landscape buffer or the minimum distance to residential. As such, staff recommends denial on the current applications. However, should the Planning and Zoning Commission choose to recommend approval, staff recommends the following conditions:
1) All stipulations included in the letter from Garvis Sams dated June 7, 2017 (See Attachment A)
2) All conditions included in the Telecommunication Site Review from CityScape Consultants, Inc. dated August 7, 2017 (Attachment B).
3) The vacant residential structure located on the subject property be only for commercial uses permitted in this zoning application, after meeting all requirements for said commercial use.
4) The applicant provide documentation addressing the maintenance of vegetative screening to be by the tower owner and not the landowner, and showing the manner in which the property shall be reclaimed in the event the tower is removed.
5) If after development the existing vegetation is not sufficient, the landscaping be supplements by the applicant subject to staff approval.