MINUTES Regular Meeting Wake County Board of Adjustment Tuesday, January 12, 2016 9:00 a.m., Room 2700 Wake County Justice Center 300 S. Salisbury St. Raleigh, North Carolina Members Present: (6) Mr. Tim Clark, Mr. Brenton McConkey, Mr. Trenton Stewart, Mr. Blake Cason, Mr. John Barker, and Mr. Donald Mial Members Not Present: (3) Mr. Terence Morrison, Mr. Billy Myrick, and Mr. Will Barker County Staff Present: (9) Mr. Steven Finn (Land Development Administrator), Mr. Tim Maloney (Planning, Development & Inspections Director), Mr. Geoffrey Pearson (Code Enforcement Complaint Coordinator), Ms. Celena Everette (Planner II), Ms. Stacy Harper (Planner II), Mr. Lee Gupton (Deputy Fire Marshal), Mr. Bryan Coates (Planner III), Mr. Frank Cope (Community Services Director), and Mr. Russ O Melia (Clerk to the Board) County Attorneys Present: (3) Mr. Ken Murphy (Assistant County Attorney), Mr. Scott Warren (County Attorney), and Ms. Allison Cooper (Assistant County Attorney) Item 1, Call to Order: Mr. Clark called the meeting to order at 9:00 a.m. with 6 members present. IN RE MINUTES Item 2, Approval of Minutes of the December 8, 2015 Meeting Mr. Cason made a motion to approve the December 8 th meeting minutes, and Mr. McConkey seconded. The motion carried unanimously. Before the cases were heard, Wake County staff members Ms. Harper, Ms. Everette, and Mr. Finn were duly sworn. Item 3, BA SU-2219-15 Before the case was heard, Mr. McConkey recused himself from consideration of the case and exited the meeting room. Voting Members: Mr. Clark, Mr. Cason, Mr. Stewart, Mr. Mial, and Mr. John Barker Landowner: Barbara S. Cummings Petitioner: Crown Castle PIN#s: 0780-50-2590 Size: 44.8 acres Location: The site is located at 7109 Ten Ten Road, between Lake Wheeler Road and Blaney Franks Road. Zoned: The parcel is split zoned Residential-40 Watershed north of Ten Ten Road (the part of the parcel with the proposed tower) and Residential-30, south of Ten Ten Road. Land Use Classification: Non-Urban, Non-Critical Residential Watershed The petitioner is requesting special use permit approval as required by section 4-11 of the Wake County Unified Development Ordinance (UDO) to construct a 230-foot freestanding monopole telecommunications tower.
TESTIMONY AND EVIDENCE PRESENTED Documentary Evidence: Staff report, PowerPoint presentation, site plan, application, video, and relevant sections of the Unified Development Ordinance were shown and/or available. Testimony: Ms. Harper, Planner II, entered the staff report and PowerPoint presentation for BA SU-2219-15 into the record. Mr. Clark accepted the staff report and PowerPoint slides into the record. Ms. Harper stated the petitioner s name, zoning classification, background and history of the petition. In 1985, the Board of Adjustment granted a special use permit for the 280 foot lattice style tower that is currently on the property. The current request is to replace the lattice tower with a 230 foot monopole tower. Plans are to construct the proposed tower right next to the current tower; the current tower would then be removed. The site plan, which would be approved as part of the special use approval, states that the lattice tower will be removed within 6 months of the final building inspection for the new tower. The applicant s legal counsel has been informed that the final zoning inspection will not be done on the property until all required conditions of the site plan are met, including the removal of the existing tower. The new tower is proposed in the same location as the existing tower. The tower would be more than 1,000 feet from the home that is on the property. The landscaping plan is in compliance. New material will be used to fulfill the 40 foot Type C buffer with the exception of a small area on the northern side of the compound that has some existing trees. The two required parking spaces are shown on this plan. No additional stormwater measures are required for this site due to the limits of disturbance. On December 15, notification letters were mailed to adjoining property owners, and a public hearing placard was placed on the property. Mr. Clark asked if there is a requirement regarding how close a tower can be to a residence. Ms. Harper said that staff would not want a house within the fall zone. The residence on the property is outside the fall zone. Mr. Stewart asked how far the tower would be from the new subdivision. Ms. Harper estimated that the nearest house would be at least 1,000 feet away across the driveway. There would also be a buffer around the subdivision. Mr. Clark asked if the previous Board of Adjustment case had any conditions included with the special use approval. Ms. Harper said that there were no conditions other than the standard ordinance requirements. Mr. John Barker asked if the new tower would be constructed within the existing chain link fence. Ms. Harper said that the new tower would be within the leased area. Ms. Merrick Parrott, attorney with Parker Poe Adams & Bernstein, 301 Fayetteville Street, Raleigh, NC, came forward representing the petitioner. Sworn witnesses in favor of the petition: Mike Chirico, 543 Old Mill Village Drive, Apex, NC 27502 David Haughney, 2022 Catskill Court, Apex, NC 27523 Joshua Staab, 4501 Lancashire Drive, Raleigh, NC 27613 David Smith, 3 Morristown Circle, Durham, NC 27705 Mr. Chirico stated that he is a project manager for Crown Castle in the Cary, NC office. Crown Castle is applying to replace the existing 280-foot lattice tower with a 230-foot monopole tower within the existing compound. A new tower is necessary because the new equipment for the new technology is too heavy for the existing tower. The proposed tower would be setback approximately 280 feet from the western and northern property lines, approximately 800 feet from Ten Ten Road, and approximately 876 feet from the eastern property line. The replacement tower will comply with FCC rules and standards regarding maximum permissible exposure to radio frequency emissions and public safety. The new tower will not cause any increase in traffic to the site. There would be approximately one trip per month to the location. There will be no negative impacts to the provision of services and utilities, 2
soil, erosion and sedimentation, or public community or private water supplies. The site will not need any water or sewer services. The use will not materially endanger the public health or safety. The proposed use is allowed within the zoning district with a special use permit. Mr. Chirico said that the proposed 230-foot tower will not impact any surrounding parcels that the existing tower does not currently impact. Mr. Chirico said that the location and character of use with be in harmony with the area it will be located. Mr. Haughney came forward to address the board. He said that he is an RF engineer for Verizon Wireless. He said that he has work in RF engineering in the Triangle for 15 years. He said that Verizon Wireless is going through capacity upgrades to support 4G data demand. He said that a study was done that determined that the existing tower could not support any more equipment. The proposed tower is a more modern, sleeker tower that would support the additional equipment and additional colocaters if needed in the future. Mr. Mial asked about the construction timeline. Mr. Chirico answered that it will take 2-3 months to get the tower steel. Construction of the tower should take no more than six months which should provide time for the concrete to settle and to complete the landscaping. They would then have six months to remove the old tower. In all, the project could take a year to complete. Mr. Barker asked how large an area the tower would service. Mr. Haughney answered that the tower could service a 2-3 mile suburban area. Mr. Clark asked if the proposed height for the monopole tower is standard. Mr. Haughney answered that it is taller than a standard monopole tower, but it is shorter than the structure it is replacing. Mr. Staab came forward to address the board. He said that he is a project manager for Tower Engineering Professionals. He has worked there for seven years, and he is a registered engineering intern and has passed the professional engineering exam. Mr. Staab said that he helped to prepare the construction drawings. He said that the construction drawings comply with all aspects of the Wake County UDO, including fall zones, landscape screening, setbacks, parking, and collocation ability. The drawings show the two required parking spaces and the required 40-foot Type C landscape buffer. Mr. Smith came forward to address the board. He said that he is a state certified real estate appraiser, and he holds the MAI designation. He said that he was engaged to conduct an analysis regarding the impact of the proposed tower on adjoining properties. The existing tower has been in place for 30 years. The replacement tower is shorter and a monopole design. He said that there is no reason to believe that the proposed tower would have any impact on surrounding properties. He prepared a property impact analysis. Ms. Parrott submitted Application Hearing Exhibit 1: Mr. Smith s Impact Analysis of the proposed telecommunications tower on the values of adjoining properties. Mr. Clark accepted the exhibit into the record. Mr. Smith said that he was unable to find a situation where one tower was being replaced by another tower. He compared properties with no towers versus properties with towers. He analyzed properties in the Cobble Ridge subdivision in Holly Springs. That subdivision includes a tower on one of the lots in the subdivision. He analyzed the properties that were adjacent to or across the street from the tower that would have the most visual impact from the tower. Mr. Smith found that those properties did not sell for any less per square foot than properties in the same subdivision that were further away. Mr. Smith said that he also considered the Sunset Ridge subdivision half a mile away with no tower in it. He said that there were no differences in sale price per square foot between houses in Sunset Ridge and houses in Cobble Ridge near the tower. Mr. Smith concluded that there is no substantial injury to the adjacent properties caused by the proposed tower. Mr. Clark asked how far Cobble Ridge is from the subject site. Mr. Smith said that it is a good distance away; the subject site is rural, and he wanted to find a site that is more urban so there are more houses to show the impact. He said that Cobble Ridge would be more impacted by a tower than the subject site. 3
There was no one else who wished to speak in favor of or in opposition to the request. Mr. Clark closed the public hearing. BOARD DISCUSSION Mr. Clark discussed the required findings of fact. 1. The proposed development will not materially endanger the public health or safety. Mr. Clark said that there was testimony that the telecommunications tower use creates little, if any, impact on traffic. There are no utilities required relative to the use. Mr. Clark said that soil erosion and sedimentation would be taken care of during the site development, and there would be no effect on public or private water supplies. 2. The proposed development will comply with all regulations and standards generally applicable within the zoning district and specifically applicable to the particular type of special use or class of special uses. Mr. Clark said that Mr. Staab testified that the site plan will comply with all regulations. 3. The proposed development will not substantially injure the value of adjoining property, or is a public necessity. Mr. Clark said that Mr. Smith, an appraiser and MAI, testified that the proposed tower will not injure the value of adjoining property. The new tower is replacing an existing tower, and the new tower will be shorter than the existing tower. Mr. John Barker quoted the applicant s statement of justification: The Federal Communications Commission reports that slightly more than half of all United States citizens live in wireless-only households and rely exclusively on cell phones. Mr. Barker said that this supports the fact that telecommunications towers are a public necessity. 4. The proposed development will be in harmony with the area in which it is located. Mr. Clark said that the existing tower has been in place for 30 years. 5. The proposed development will be consistent with the Wake County Land Use Plan. Mr. Clark said that the use is permitted in the area. MOTION Mr. John Barker made a motion in the matter of BA SU-2219-15 that the Board find and conclude that the petition does meet the requirements of Article 19-23 of the Wake County Unified Development Ordinance and the special use permit be granted with the recommended staff conditions. Mr. Stewart seconded the motion. By a vote of 5-0, the motion passed, and the special use permit was granted. So ordered. FINDINGS OF FACT (1) The proposed development will not materially endanger the public health or safety. Considerations: a. Traffic conditions in the vicinity, including the effect of additional traffic on streets, street intersections, and sight lines at street intersection and curb cuts. The telecommunications tower use creates little, if any, impact on traffic. b. Provision of services and utilities, including sewer, water, electrical, garbage collections, fire protection. There are no utilities required relative to the use. c. Soil erosion and sedimentation. Soil erosion and sedimentation would be taken care of during the site development. d. Protection of public, community, or private water supplies, including possible adverse effects on surface waters or groundwater. There will be no effect on public or private water supplies. 4
(2) The proposed development will comply with all regulations and standards generally applicable within the zoning district and specifically applicable to the particular type of special use or class of special uses. The site plan will comply with all regulations. (3) The proposed development will not substantially injure the value of adjoining property, or is a public necessity. The proposed tower will not injure the value of adjoining property. Considerations: a. The relationship of the proposed use and the character of development to surrounding uses and development, including possible conflicts between them and how these conflicts will be resolved. The new tower is replacing an existing tower, and the new tower will be shorter than the existing tower. b. Whether the proposed development is necessary to the public health, safety, and general welfare of the community or County as a whole as to justify it regardless of its impact on the value of adjoining property. Telecommunications towers are a public necessity. (4) The proposed development will be in harmony with the area in which it is located. The existing tower has been in place for 30 years. Considerations: a. The relationship of the proposed use and the character of development to surrounding uses and development, including possible conflicts between them and how these conflicts will be resolved. (5) The proposed development will be consistent with the Wake County Land Use Plan. The use is permitted in the area. Considerations: a. Consistency with the Plan's objectives for the various planning areas, its definitions of the various land use classifications and activity centers, and its locational standards. b. Consistency with the municipal and joint land use plans incorporated in the Plan. CONCLUSIONS OF LAW The proposed development will not materially endanger the public health or safety. The proposed development will comply with all regulations and standards generally applicable within the zoning district and specifically applicable to the particular type of special use or class of special uses. The proposed development will not substantially injure the value of adjoining property, or is a public necessity. The proposed development will be in harmony with the area in which it is located. The proposed development will be consistent with the Wake County Land Use Plan. IT IS THEREFORE ORDERED: 1) The petitioner must record the notarized form pertaining to the Order of the Board in the Wake County Register of Deeds and return a copy to the Current Planning Section of Wake County Planning; 2) The petitioner must obtain appropriate building permits from the Wake County Inspections Development/Plans/Permits Division; 5
3) A final zoning inspection must be conducted on the site. Item 4, BA A-2223-15 Voting Members: Mr. Clark, Mr. Cason, Mr. McConkey, Mr. Stewart, and Mr. John Barker Before the case was heard, staff members Mr. Pearson and Mr. Finn were duly sworn. Landowner: Lee & Hudgins Enterprises, LLC Petitioner: Skyway Towers PIN#s: 1701 04 6088 Size: 36.96 acres Location: The site is located on the south side of Farm Road, at the westernmost end of Farm Road. Zoned: Industrial-1 District and Highway District Land Use Classification: Non-Compliance Area/Water Supply Watershed (NUA/WSW) The petitioner is appealing the determination of planning staff, as allowed by Article 19-41 Appeals of Administrative Decisions, that the denial of a General Use Permit for a 176 foot freestanding telecommunications facility was denied in error based on the following sections of the Wake County Unified Development Ordinance: 4-56-1(B)(5) Telecommunication Facilities TESTIMONY AND EVIDENCE PRESENTED Documentary Evidence: Staff report, PowerPoint presentation, site plan, application, relevant sections of the North Carolina General Statutes, relevant inspection records, and relevant sections of the Unified Development Ordinance were shown and/or available. Testimony: Mr. Pearson, Code Enforcement Complaint Coordinator, entered the staff report and PowerPoint presentation for BA A-2223-15 into the record. Mr. Clark accepted the staff report and PowerPoint slides into the record. Mr. Pearson stated the petitioner s name, zoning classification, background and history of the petition. The property is currently vacant and undeveloped. On September 22, 2015 Wake County Planning, Development, & Inspections (PDI) received a pre-submittal meeting request from the appellant, Skyway Towers. The purpose of the meeting was to discuss the construction of a proposed 176-foot tall monopole cell tower to be erected on the property. During the pre-submittal meeting, the appellant was notified that Wake County PDI had approved a permit application for another cell tower site on March 4, 2015, and that tower site was less than 1,500 feet from its proposed location. The applicant for the approved application was Capital Telecom. Wake County UDO Section 4-56-1(B)(5) requires a minimum distance of 1,500 feet between two freestanding cell towers. Skyway Towers was notified that the permit application for Capital Telecom that was approved in March 2015 had expired, and the permit application was suspended on September 30, 2015. Capital Telecom was informed of the status of their permit application. Mr. Clark asked if the 1,500 foot requirement between two freestanding cell towers is a new UDO requirement. Mr. Pearson answered that the requirement has been in place for some time. Mr. Pearson continued his presentation to the board. On October 12, 2015 Skyway Towers submitted a general use permit & commercial building permit application to Wake County PDI for review of its 176-foot monopole tower. On October 16th, review comments were sent back to the appellant, and the appellant was asked to revise the site plan to show compliance with the UDO. On October 29, 2015 Capital Telecom resubmitted it s previously approved commercial building permit for renewal to PDI. Under state law, a building permit expires after 6 months if no construction work has commenced. However, under North Carolina 6
General Statute 153A-349.52(g), zoning approval of a new cell tower is valid for 2 years. As a result, zoning staff performed a cursory review to ensure no changes had been made to the Capital Telecom site plan, and Inspections staff performed the same type of review. Thus, before the appellants revised site plan could be rereviewed, Capital Telecom s building permit application was approved, and a building permit was issued for the construction of its telecommunication facility on November 6, 2015. Since Capital Telecom received its building permit prior to Skyway Towers, the permit application for Skyway Towers could not be approved because Skyway Towers s tower would be less than 1,500 feet from Capital Telecom s tower. On November 6, the appellant was notified of the denial of its General Use Permit, and Skyway Towers filed an appeal to the Board on November 6, 2015. The distance between Skyway Towers s proposed telecommunication facility, which is located to the north along Farm Rd, and the permitted cell tower for Capital Telecom, which is located to the south near Fayetteville Rd, is approximately 1,100 feet. Mr. John Barker asked if the distance is measured to the actual tower or to the compound around the tower. Mr. Pearson answered that the distance is measure from the actual tower locations. Mr. Pearson continued his presentation. Skyway Towers is appealing staff s decision to deny the general use permit for their telecommunications facility because they believe the permit was denied in error. The appellant believes that staff has misinterpreted Section 4-56-1(B)(5) of the UDO, which reads, The minimum distance between two freestanding towers throughout all zoning districts shall be 1,500 feet. The appellant believes that the 1,500 foot separation between towers should be based on actual constructed towers and not to proposed towers. Since Capital Telecom has not constructed its tower yet, Skyway Towers feels it should be allowed to obtain its building permit in order to build its tower in advance of Capital Telecom s tower. Capital Telecom was able to acquire a validly issued general use permit prior to Skyway Towers. As a result, staff feels that Capital Telecom has established a vested right under NC General Statutes. Vested Right, as defined in NC General Statute Section 153A-344.1 means: The right to undertake and complete the development and use of property under the terms and conditions of an approved site specific development plan or an approved phased development plan. Site Specific Development Plan, as defined in NC G.S. Section 153A-344.1 means: A plan which has been submitted to a county by a landowner describing with reasonable certainty the type and intensity of use for a specific parcel or parcels of property. Such plan may be in the form of, but not limited to, any of the following plans or approvals:... General development plan... Any other land-use approval designation as may be utilized by a county. The approved general use zoning permit, in conjunction with the approved commercial building permit, serves as a Site Specific Development Plan, and as such, Capital Telecom has met the criteria to establish a Vested Right. UDO Section 19-42-1(A) reads in relevant parts: No excavation may be commenced, no wall, structure, premises, or land used, building or part thereof may be built, constructed or altered, nor may any building be moved, nor may any sign be erected or structurally altered until application has been made and proper permit has been obtained. When the Planning Director, with the technical assistance of other County departments or upon direction by the Planning Board or Board of Adjustment, has determined that the proposed land use is permitted under the provisions of this ordinance, a permit for the proposed use will be issued. Before construction work can commence for any land development activity, the proper permits must be obtained from the PDI Division. In addition, before the proper permits can be issued, an applicant must demonstrate that they can comply with all required provisions of the UDO prior to that permit being approved. Therefore, in order for Skyway Towers to receive a proper zoning permit for its proposed new cell tower, they must demonstrate that they can comply with the 1,500 foot separation between towers, as Capital Telecom did, before a permit is issued. Additionally, Skyway Towers can demonstrate compliance with the UDO by 7
taking advantage of other UDO options available to them, such as a variance request or colocation on an existing cell tower. Mr. Pearson concluded that it was staff s determination that the general use permit denying the construction of a 176 foot Telecommunication Facility in an I-1 Zoning District was not denied in error. Mr. Cason asked how long Capital Telecom has to build their tower. Mr. Pearson said that the building permit lasts for six months. The zoning permit is valid for twenty-four months. Mr. Stewart asked if it is standard practice for staff to contact an applicant about an expired permit. Mr. Pearson answered that it is routine practice for staff to notify applicants regarding expired permits. Mr. Clark asked about vested rights. Mr. Pearson said that the most common way to establish a vested right is with a building permit. Another way to establish a vested right would involve if an applicant relies on a permit to perform work and incurs expense based on the permit. Mr. Clark asked about correspondence with staff from the School of Government at the University of North Carolina. Mr. Murphy advised the board that the communications with the School of Government cannot be the basis for any finding or conclusion since the individuals were not present. Mr. Clark ruled that the board would not consider the communications with the School of Government. Mr. Clark asked if there is a use existing on the Capital Telecom site. Mr. Pearson answered that it is a solid waste container site used for storing dumpsters. There are vehicles parked on the property, and there is a building and shelter on the property as well. Mr. Clark asked about building within a tower s fall zone. Mr. Pearson said that the ordinance does not address buildings on the same parcel as the cell tower. In this case, staff would be concerned with the tower falling on adjacent residential or in a public right-of-way. Mr. Clark asked when the 1,500-foot requirement came into effect. Mr. Pearson estimated that the requirement existed in 1992. Mr. McConkey asked about the requirements to obtain a building permit. Mr. Pearson said that in order to get a building permit, plans would need to be submitted. Each division would review the plans to confirm compliance with all regulations. When the permit is approved, the applicant pays a fee for the permit. At that point, the permit becomes active. Mr. McConkey asked how much the fee was in this case. Mr. Pearson said that the fees depend on the costs of construction; the fee for the permit for Skyway Towers would have been approximately $2,000; the fee for the Capital Telecom permit was comparable to that. Mr. Tom Johnson, attorney with Nexsen Pruitt (4141 Parklake Avenue, Suite 200, Raleigh, NC), came forward representing Skyway Towers. Sworn witness in favor of the petition: Bob Hill, 1300 Royal Links Drive, Mount Pleasant, South Carolina Mr. Johnson said that Skyway Towers proceeded with their process of obtaining permits for their tower after the Capital Telecom permit expired. At the cusp of Skyway Towers obtaining their permit, Capital Telecom renewed their permit, and staff denied the permit for Skyway Towers. Mr. Johnson asked if the Capital Telecom permit was picked up. Mr. Pearson answered that the Capital Telecom permit was picked up on November 6 th. Mr. Johnson said that the focus of his appeal is an interpretation of the UDO language that states: The minimum distance between two freestanding towers throughout all zoning districts shall be 1,500 feet. He said that his position is that this language applies to an existing tower, not to a permit to build a tower. T- Mobile engaged Skyway Towers to find a location for a tower. Skyway Towers looked within their search ring and found the site. When they visited the site, there was no tower on the Capital Telecom site. Mr. Johnson said that the Capital Telecom tower is not within the search ring for T-Mobile. Mr. Johnson said that Skyway Towers proceeded with their plans and investment into their proposed tower only to be stopped due to a speculative permit from Capital Telecom. He referenced NC G.S. 153A-349.52(c)(3) which states: 8
A county may require applicants for new wireless facilities to evaluate the reasonable feasibility of collocating new antennas and equipment on an existing wireless support structure or structures within the applicant's search ring. Collocation on an existing wireless support structure is not reasonably feasible if collocation is technically or commercially impractical or the owner of the existing wireless support structure is unwilling to enter into a contract for such use at fair market value. Counties may require information necessary to determine whether collocation on existing wireless support structures is reasonably feasible. Mr. Johnson said that the state statute will control if there is a conflict with the county ordinance. He said that the statute says an existing tower and not a permitted tower. The statute also says within the applicant s search ring. Mr. Johnson contended that the county could not force Skyway Towers to look at an alternate location if it is outside their search ring. Mr. Johnson said that the Capital Telecom tower meets neither criterion under the state statute: their tower does not exist, and their tower is outside of the search ring for Skyway Towers. He said that Capital Telecom has not made a significant investment, but their permit is blocking any action by Skyway Towers. The way staff has interpreted the ordinance has put T-Mobile at a competitive disadvantage if they are forced to go to Capital Telecom. Mr. McConkey asked Mr. Johnson if he thought NC G.S. 153A-349.52(c)(3) pre-empts the 1,500-foot requirement in the UDO. Mr. Johnson said that the UDO should be pre-empted to the degree that the interpretation is based upon permits issued. He said that the interpretation should be based upon existing towers since that is what the statute says. Mr. McConkey asked how far along a tower would have to be to trigger the requirement. Mr. Johnson said that the vertical improvements would need to be there so people could see the structure there that is an alternative. He said that some county ordinances require that a tenant be signed up before a tower is built. Mr. McConkey asked about NC G.S. 153A-349.52(c) which states: A county's review of an application for the placement or construction of a new wireless support structure or substantial modification of a wireless support structure shall only address public safety, land development, or zoning issues. In reviewing an application, the county may not require information on or evaluate an applicant's business decisions about its designed service, customer demand for its service, or quality of its service to or from a particular area or site. A county may not require information that concerns the specific need for the wireless support structure Mr. McConkey asked whether this has been interpreted to prohibit counties from blocking speculative towers. Mr. Johnson said that that provision deals with the carriers and not the tower builders. Mr. Mial asked Mr. Johnson if he thought Capital Telecom would be in violation if they built their tower after Skyway Towers built their tower. Mr. Johnson said that if a carrier was looking for a site, according to the state statute they would need to use the Skyway Towers tower since it would be existing (in this scenario). Mr. Johnson noted that a recent ordinance amendment was made that inadvertently removed some safety valves for the 1,500-foot requirement. Mr. Hill came forward to address the board. He said that he is the site development manager for T-Mobile for North and South Carolina. He said that T-Mobile issued the search rings for areas that they would like to improve their voice or data service. The search rings have a radius of about ½ mile. Mr. Hill said that T-Mobile and Skyway Towers drove through all of the search rings to see if were any existing structures. They did not find any structures within the search ring. Mr. Hill said that since there was no tower in the area, he did not have any way of knowing any towers were in the process. Mr. Stewart asked at what point they enter into an agreement with a property owner. Mr. Hill said that property owners are often signed up on a lease option. Once the lease option is finalized, due diligence, such as surveys, site plans, and drawings, are ordered. 9
Mr. Johnson asked Mr. Hill if the Capital Telecom site is within the search ring. Mr. Hill answered that he did not believe so. Sworn witness in opposition to the petition: Tom Waniewski, 1500 Mt. Kemble Avenue, Morristown, New Jersey Mr. Waniewski stated that he is employed by Capital Telecom. He said that Capital Telecom began leasing the property from the owner, Mr. Britt, on July 23, 2013, well before Skyway Towers performed their research. He said that Capital Telecom was working for their anchor carrier, AT&T. Further down the line, the project was placed on hold, but the project was not a speculative tower. Mr. Waniewski said that Capital Telecom made a significant investment in their tower project obtaining permits, environmental studies, drawings, and paying rent. He said that Capital Telecom has spent over $50,000 on the project thus far. Capital Telecom picked up the permit on November 6 th, and the permit was paid for on November 6 th. Mr. Waniewski said that Capital Telecom sent notification to T-Mobile (including to Mr. Hill) informing them of the project and the location of their proposed tower. He said that any site acquisition agent does not just look for existing towers; part of the job is to check for any existing permits with the local government agency. He said that the Capital Telecom permit was in place during Skyway Towers s due diligence process. The Capital Telecom tower will be a 150-foot tower designed for collocation that could accommodate T-Mobile and other carriers. Mr. Waniewski said that the UDO promotes collocation which the Capital Telecom tower will handle. If the Capital Telecom tower would not work for T-Mobile from a radio frequency perspective, Mr. Waniewski said that such a circumstance would create the need for two towers within 1,100 feet of one another, but that had not been presented. He said that Capital Telecom has an existing master lease agreement with T-Mobile, and Capital Telecom has signed many leases with T-Mobile. Mr. Waniewski testified that Capital Telecom would agree to a market rate agreement with T-Mobile in accordance with the master lease agreement. He said that Capital Telecom intends to build the tower. Mr. Clark asked if the existing use on the property would remain after Capital Telecom builds their tower. Mr. Waniewski said that the tower compound would be 50 feet by 50 feet with an existing drive going back to the compound. The current commercial use would not change. Mr. Johnson said that the tower location for Skyway Towers is not in the middle of the search ring. Mr. Johnson questioned whether there was a tenant for the Capital Telecom tower since no tenant was listed on the permit. Mr. Waniewski said that Capital Telecom never lists carriers on their permits because doing so ties up the Certificate of Occupancy. If a carrier is delayed installing antennas or shelters, Capital Telecom would be prevented from obtaining a Certificate of Occupancy. He said that each carrier is required to obtain their own building permit to install or collocate their antennas and shelters on the towers. Mr. Pearson noted that if both Skyway Towers and Capital Telecom were issued permits, two towers could be under construction at the same time, and when one tower obtains a Certificate of Occupancy the permit on the other tower would be revoked. The operator of that tower could then apply for a variance. There was no one else who wished to speak in favor of or in opposition to the request. Mr. Clark closed the public hearing. BOARD DISCUSSION Mr. McConkey said that there is evidence that the Board of Commissioners may want to revisit the 1,500-foot separation requirement due to current technology and demand for service. He said that if a building permit does not trigger the 1,500-foot requirement, the county has an enforcement issue. If both sites are issued permits, both sites have a vested right to construct. At that point, it is too late for the county to enforce, and the 1,500-foot requirement is rendered useless. If one tower finished construction before the other tower, the county cannot then go to the other tower to force them to tear down the tower. Mr. McConkey questioned how 10
far a development would have to go before the county could enforce the requirement if it is not via a building permit. He said that it is unreasonable to require that the entire tower be built since there are a lot of expenses that go into preparing a site. Mr. McConkey said that he is sympathetic to Skyway Towers. He said that the testimony regarding whether there was a carrier on the tower is irrelevant to the board s decision. Mr. McConkey said that he is inclined to support the staff s position. He noted NC G.S. 153A-349.52(c)(3) which states in part: A county may require applicants for new wireless facilities to evaluate the reasonable feasibility of collocating new antennas and equipment on an existing wireless support structure or structures He also noted NC G.S. 153A-349.52(c)(2) which states in part that a county can review: Information or materials directly related to... evidence that no existing or previously approved wireless support structure can reasonably be used for the wireless facility placement instead of the construction of a new wireless support structure Mr. McConkey said that this language in the state statute contemplates that the county can take into consideration not just existing structures but previously approved structures. Mr. Stewart said that he heard testimony that may be relevant for a variance application, but regarding the appeal he sides with the staff s interpretation of the ordinance. MOTION Mr. McConkey made a motion that based on the applicable Wake County Unified Development Ordinance provisions, and on the evidence submitted in the matter of BA A-2223-15 that the Board find and conclude that the Planning staff s determination should be upheld and the denial of the general use permit is affirmed. The motion to affirm is based on the following findings of fact and conclusions of law related to: 1. Evidence that the denial of the General Use Permit for a 176 foot freestanding telecommunications facility was not denied in error and the proposed development does not comply with Section 4-56-1(B)(5) of the Unified Development Ordinance. Mr. Clark seconded the motion. By a vote of 5-0, the motion passed, and the Planning staff s decision was affirmed. The General Use Permit is denied. So ordered. Item 5: New Business Mr. Finn updated the board regarding recent development activity. The board briefly discussed items being considered by the Planning Board. Mr. Murphy introduced Allison Cooper to the board. Ms. Cooper is a new staff member in the County Attorney s Office. Item 6: Old Business There was none. Item 7: Adjournment Hearing no additional business, the meeting was adjourned at 11:08 a.m. 11