Loading...
HomeMy WebLinkAboutMinutes - Planning and Zoning Commission - 12/6/2005 MINUTES PLANNING COMMISSION REGULAR SESSION DECEMBER 6, 2005 TOWN COUNCIL CHAMBERS 11000 NORTH LA CANADA DRIVE REGULAR SESSION AT 6:00 PM CALL TO ORDER ROLL CALL PRESENT: VICE CHAIR PETE BISTANY COMMISSIONER BILL ADLER COMMISSIONER DON MANROSS COMMISSIONER TEREE BERGMAN COMMISSIONER DOUG MCKEE COMMISSIONER HONEY PIVIROTTO (arrived at 6:05) EXCUSED: CHAIR JOHN ANNING ALSO PRESENT: PAUL LOOMIS, MAYOR BARRY GILLASPIE, VICE MAYOR K. C. CARTER, COUNCIL MEMBER BRENT SINCLAIR, COMMUNITY DEVELOPMENT DIRECTOR JOE ANDREWS, CIVIL ATTORNEY ANDREAS MOLIN, PLANNER Vice Chair Bistany introduced Sarah More, the newly appointed Planning and Zoning Administrator. CALL TO THE AUDIENCE opened and closed at 6:02 There were no speakers. MINUTES MOTION: Commissioner Manross MOVED to approve the November 1, 2005 Planning and Zoning Commission regular meeting minutes as written. Commissioner McKee seconded the motion. Commissioner Adler asked for a correction to the minutes stating the reason why he voted no on Item #2, page 10. Commissioners Manross and McKee accepted Commissioner Adler's corrections. Motion carried 5 yes, 0 no. December 6, 2005 Approved Minutes PLANNING AND ZONING COMMISSION 2 1. CONTINUED ITEM, PUBLIC HEARING, OV9-05-08A, LEWIS AND ROCA LLP, REPRESENTING JOHN SIMON, REQUESTS APPROVAL OF AN AMENDMENT TO THE STEAM PUMP VILLAGE PLANNED AREA DEVELOPMENT (PAD) ZONING STANDARDS REGARDING OUTDOOR LIGHTING FOR A PERFORMANCE AMPHITHEATER WITHIN A 41 ACRE COMMERICAL DEVELOPMENT, LOCATED ON THE WEST SIDE OF ORACLE ROAD IN PROXIMITY TO EAST HANLEY BOULEVARDE AND THE HONEYWELL SITE, PARCEL NUMBERS 220-08-001P & 1Q, 220-11-003A, AND 220-04-009E &9C. Vice Chair Bistany stated that the application has been officially withdrawn by the applicant; however, it is a continued item and there will be an information presentation of this item. The applicant has stated in the withdrawal that he has conformed to the lighting zoning requirements of Oro Valley. Mr. Sinclair said there is a letter of withdrawal from the applicant in the packet. The applicant would like to come before the Commission and speak. Keri Silvyn, Lewis and Roca, 1 South Church, introduced the people who were at the meeting and would be able to answer questions that may arise: John Simon, the owner and developer of Steinway, Hy Caplin, the lighting expert, Carl Kilgore, Profile Design Inc. and Mark Weinberg with Diamond Ventures. The application has been withdrawn and the last few weeks have been spent working with Staff and the lighting expert to revise the lighting plan to bring it into conformance with Code. Because there was a lot of interest in this item at the last Planning and Zoning Commission meeting, the applicant held a Neighborhood Meeting last Wednesday in the Council Chambers. Everybody who got the official notice was noticed for the meeting, as well as anybody who spoke at the hearing and gave their name and address. As many concerns as possible were addressed in that meeting. A PAD amendment is not needed. Code is being met on lighting and noise and the developer is ready to move forward. If there is anybody who was not able to be at that neighborhood meeting and would like to talk to Mr. Simon, he is available. Commissioner Adler expressed his appreciation for Ms. Silvyn, Mr. Weinberg and Mr. Simon working so diligently to put together the Neighborhood Meeting and responding to the neighbor's concerns. He felt there is now a reasonableness to the process and this can go forward with enthusiasm. PUBLIC HEARING opened at 6:10 p.m. Peter Camerato, 2441 East Stone Stable. He was not at the last meeting so he wasn't aware of the withdrawal, but since everything is going to be done per Code he doesn't feel he needs to speak in opposition. Larry Casper, 11395 N. Flying Bird Drive, wanted to be sure he heard that this was withdrawn. The applicant is now going to meet Code which is what the neighbors asked for. He stressed that the neighborhood is standing by watching at this point. If the music becomes obtrusive, the neighborhood will take whatever action is allowed. December 6, 2005 Approved Minutes PLANNING AND ZONING COMMISSION 3 Bob Rose, 13856 N. Silver Creek, was not at the previous meeting. His concern was the lighting, but that is a moot point. Noise is also a concern. Nancy Mogck, 11286 N. Majestic Ram Place, asked what neighbors were notified, because she is off Rams Field Pass and that whole neighborhood was not invited to that meeting. Ms. Silvyn responded to Ms. Mogck that notice was sent out to every property within 600 feet of the property line, which is the official distance for notification. The speakers from the last Planning and Zoning Commission meeting who were not within that 600 feet area were also notified. Mr. Camerado said he was also in the area not notified of the meeting. It would behoove Mr. Simon and his council in the future to realize there are people who are interested that were not notified and would have liked to be notified. Mr. Sinclair explained the notification limits as prescribed in the Code is 600 feet from the property. We went well beyond that is this case. The HOA was notified. Rams Canyon and Rams Field Pass are properties on the East side of Oracle Road, well beyond the notification range. Commissioner Adler asked, for the sake of those Commissioners who were not at the Neighborhood Meeting, if there would be any value in having Mr. Simon summarize what types of performances he intends to attract to the amphitheater. Attorney Andrews asked if we could close the public hearing. PUBLIC HEARING closed at 6:25 p.m. Vice Chair Bistany closed this item as there was not vote required. No action was taken. 2. PUBLIC HEARING: OV8-95-1A, MARKEN TELECOM SERVICES, REPRESENTING CROWN CASTLE, REQUESTS RENEWAL OF A CONDITIONAL USE PERMIT FOR A 78 FOOT TELECOMMUNICATIONS TOWER, LOCATED AT THE TUCSON ELECTRIC POWER SUB-STATION, 65 EAST TANGERINE ROAD, PARCEL 219-53-001A Mark McGarey, 4133 Hawthorne Place, Longmont, CO 80503, representative for Crown Castle stated that Crown Castle is one of the largest tower managements and ownership companies in the world. They are not a wireless provider, but provide the facility that wireless companies, in this case Alltel and T-Mobile, locate their facilities on to enable their wireless networks to reach their customers. The original use permit expired a few months ago and Crown is in the process of bringing that permit up to date to remain in compliance. Crown wants to maintain the facility and structure for Alltel and T-Mobile. December 6, 2005 Approved Minutes PLANNING AND ZONING COMMISSION 4 Vice Chair Bistany asked Mr. McGarey if flush mounting affects the transmission range of the signal. Mr. McGarey said with this particular tower flush mounting doesn't affect the range. What would effectively happen is the number of antennas the tenants will be able to use on the site would be reduced. Alltel has a site that contains 12 panel antennas and 2 Omni antennas. The Omni antennas can be mounted flush as they are now, extending from the top of the pole but not extending out on the crow's nest antenna array. The stipulation is to try to get the antenna array reduced so it is in compliance with today's code requirements for flush mounting. The tenants could reduce the antenna array to be in compliance, but the number of antennas would be reduced from 12 to 3 if they could stack them vertically. Over time additional sites would need to be built to handle the capacity loads on the network. Bringing into compliance may be a benefit to the aesthetics in that area, but it may have a negative impact in terms of demand for additional towers nearby. Staff member Andreas Molin gave the Staff report, pointing out the Revised Exhibit A. Commissioner Adler asked if Staff was not going to require that the pole be shortened and that the arms be flush mounted. Mr. Molin replied yes, it will be left as is. Commissioner Adler said the installation that is in CDO Park is a pole that conforms to the current ordinance and is highly desirable. He is opposed to having poles in parks or residential area, but the CDO type would be desirable is necessary. He is confused with the recommendation. Mr. Sinclair said the first recommendation was to require flush mounting. Commissioner Adler is right, the installation at CDO Riverfront Park is totally stealth. Legal staff advised that flush mounting should not be required. That is why there is a Revised Exhibit A. Attorney Andrews stated that the approval given 10 years ago did not give the due process that in 10 years the applicant would be told that he would have to bring this back into today's standard. They have invested a lot of money in what is out there. There is case law in place that says a Conditional Use Permit (CUP) such as this with a termination period cannot be made to conform without issues for the Town. Legally sound advice is to maintain the status quo, but if expanded or changed, then it would have to conform. Otherwise it creates legal issues and possibly financial issues for the Town. Commissioner Adler asked if the Town had no alternative but to approve this CUP. Attorney Andrews responded that the Town could always deny it and see what the applicant does. Commissioner Adler said there are other conditions in order to gain approval of a CUP that have to be met, not just the condition of the tower. Do we have no option to consider those? December 6, 2005 Approved Minutes PLANNING AND ZONING COMMISSION 5 Attorney Andrews said you do it at the peril of the Town. This was approved in 1995, under 1995 conditions, under the 1995 Code. Now forcing the applicant to go through an expense based on a change in law between then and now is very similar to the billboard cases that Tucson and Pima County have lost continuously on this type of matter. The best thing to do is maintain it in the status quo and not let it be expanded. Commissioner Pivirotto said the application for the CUP expired on July 1, 2005. Why are we considering this in December as a continuation? Isn't this a new application at this point if the applicant allowed it to expire? Mr. Sinclair said yes, it did expire; however, legal staff can explain, whether it fully expired or not is not the issue as much as whether Crown has a vested interest in this. Attorney Andrews said that in the State of Arizona, zoning is not allowed to expire automatically without due process. If you are going to take away a zoning requirement, it has to go through a due process hearing. That has not been had. Then the status quo is maintained until either the due process is given or is followed up with an application to continue the use in its current form. It expired based on the date, but it didn't expire because a due process hearing wasn't held taking away the CUP between then and now. Commissioner Pivirotto asked why the due process hearing was not held. Attorney Andrews did not know why there was no hearing. Generally, it would be brought before us from a tickler file. It did not occur. Commissioner Pivirotto asked why we waited 6 months for this application to come in. Mr. Sinclair responded that the burden is up to the applicant to present to us their request to be approved. There isn't a process for a tickler file for something that is 10 years old. Commissioner McKee asked if the Condition says that if any appurtenances are added to the pole it must be brought into full compliance, i.e. the antennas. Mr. Molin said that is correct. Commissioner McKee asked what flush mounted meant. Mr. Molin explained that basically there would be no air between the pole and the equipment, which would result in less bulk. Commissioner Bergman inquired regarding the recommended Condition; does the pole currently have capacity for other users? Mr. Molin felt there was room for additional carriers; however, the applicant informed Staff that currently there aren't plans for adding more. By approving the Revised Condition, any added uses on this would trigger full compliance of the zoning code, which would bring the tower down to 50 feet with stealth application. December 6, 2005 Approved Minutes PLANNING AND ZONING COMMISSION 6 Commissioner Bergman asked if it was advantageous to the Town to discourage additional co-location on an existing tower which might result in more towers. Mr. Molin replied that there could be advantages in having more than one stealth tower instead of one large not-so stealth tower. Commissioner McKee asked if any of the antennas are currently spare for additional capacity. Mr. McGarey said there are no spare antennas. As a tower owner, Crown has acquired assets from other companies. That could be a reason why they were negligent in getting the application in sooner. As a landlord Crown wants to support what the wireless tenants need. We want the Town to understand the technical shortcomings of Code compliance, i.e. reducing the number of antennas on this site that has been here for 10 years and predates many of the houses in the area, would result in additional towers nearby. Mr. McGarey continued, stating that Crown is okay with getting this into compliance overtime, but not at the expense of doing so with a good co-location in the future or de- intensification of the site. Perhaps the language could be amended to allow de- intensification or improvements without coming back and redoing the site in its entirety. Existing users should not be bumped off if they had to comply because of additional users. Commissioner McKee asked if the demand for tower space has reached a plateau or if it is still going. Mr. McGarey said mergers in the industry create opportunities for shared sites and reduction of some sites that are obsolete, but generally, there is more demand. With increased demand, uses and technology changes, this site will not go away. Although there are no plans for additional users at this time, it is possible there may be in the future. As the Town grows the need for more sites will increase. Commissioner Adler said the housing development adjacent to this site had fewer homes 10 years ago. One of the conditions that should be considered with CUPs is the compatibility with the surrounding area. Ten years ago it was compatible. Now it is not. He does not have a clear understanding of the legal ramifications. He would like to have had an opportunity to understand it better prior to reviewing this matter. How does Staff analyze the condition regarding compatibility that we are required to consider? Mr. Molin believes Staff would like to see communication towers that completely meet the current zoning code, but we are somewhat tied based upon the advice coming from Legal. Attorney Andrews said the condition that was placed on this item 10 years ago by the Council said that it would be reviewed, not redone. The applicant has the right to rely on certain approvals that were given 10 years ago, along with the property issue that you can't take away zoning without a due process hearing. The best we can do is maintain a status quo. Listening to applicant's suggestions this evening, he would be happy to draft up some additional language. December 6, 2005 Approved Minutes PLANNING AND ZONING COMMISSION 7 Commissioner Pivirotto said she didn't see in the Staff report any consideration of what the cost would be to come into compliance with what would be expected today. Mr. McGarey said when Crown applied for the application to renew, expectations were to be able to go forward. No cost benefit analysis was done. The development of this type of facility from the ground up would be about a half million dollars. Commissioner Pivirotto said if you allow a permit to expire 6 months ago, generally you expect things to happen because your obligation, regardless of how big you are growing and how much people did not pay attention, is that you have legal council, administrative staff and regulatory experts who are supposed to know what they are doing. She was puzzled why 6 months after expiration of this permit on an existing non compatible use, we can't pay any attention to the fact that is expired and is not compatible because we haven't given this applicant due process. This use is not compatible with the surrounding area. As a member of the Commission, she is not comfortable that she is being told too bad, we need to move forward with that. Mr. McGarey said the site may not be compatible based on today's Code, but it is important that everybody realize that Alltel and T-Mobile are providing service to many of the residents that live in this area who are going to continue to demand that service. If this site goes away or goes to 50 feet and is flush mounted, there will be a direct impact on the same customers who are residents you are trying to protect in terms of aesthetics. In terms of compatibility the site was built 10 years ago in a substation. Most of the residents moved into this area after the fact. If Crown is required to bring this tower into compliance today, it will have an impact on the network, on the residents that use their services in the area and there will have to be additional sites nearby to accommodate the capacity. Commissioner Manross said this is analogous to the sign ordinance where there was signage around the Town that was already in place, but it became a legal non-conforming use. As long as it stays there untouched and is only maintained, it stays there forever. If modifications are made, at that point in time they are required to come into complete conformance. Isn't this the same? Attorney Andrews said that this in similar. The problem is that the permit expired, and his legal analysis is that zoning does not automatically expire without a due process hearing. Commissioner Manross said that in regard to the added towers, there is nothing to stop them from coming back and applying for another CUP with changes if they want to. If we are going to give them a continuing CUP if they want to come back and make modifications, there is nothing to stop them from doing so. Attorney Andrews suggested that we change the conditions somewhat because the condition as written says any change, alteration, or modification other that maintenance would require them to redo. Commissioner Manross is not in a hurry to open up that door. If someone is going to change it then they will have to come into conformance. The way the condition is written is good and does not put the Town in jeopardy. December 6, 2005 Approved Minutes PLANNING AND ZONING COMMISSION 8 Commissioner Bergman commented that it is not uncommon for boards, commissions and town councils to place conditions that would not be legally defensible if they were challenged. It would be irresponsible of the Commission to ignore the advice of legal council and possibly create some liability for the Town. She suggested that a simple rewording to the Condition might be in order, i.e., added uses and/or appurtenance to the telecommunications pole that increase the intensity of use shall necessitate conformance of the entire pole and equipment to the current Oro Valley Zoning Code Revised standards. If Crown did want to do something that brought it closer into compliance, they would be allowed to do that, but they couldn't increase intensity without bring the whole thing into compliance with current standards. Vice Chair Bistany said if it would be a benefit, he didn't see why it should not come before the Commission again as some kind of non-conforming use. Any change whatsoever should not immediately trigger a whole redoing of this tower. The wording should be changed to require that everything be judged on its own basis. Commissioner Bergman suggested if the change did not increase the use, the applicant would not have to come in at all. Staff could evaluate that. Commissioner McKee wanted to clarify if this CUP is approved, is there a time limit on it or is it perpetual? Attorney Andrews preferred legally that no time limit be put on it again or the same problems could recur again. It is unusual to have a CUP with a time limitation. As written now it is a perpetual document. Commissioner McKee said the applicant alluded to a quasi-plan to eventually get this tower into conformance with the Code. He asked the applicant to be more specific. Mr. McGarey said he cannot speak for the tenants. If a reduction is stipulated in the number of antennas or how they are attached to the pole, i.e. flush mounted, he does not know whether Crown's tenants will view that and respond aggressively. Most carriers understand the direction that municipalities generally and Oro Valley specifically are trying to go with their Code. Siting wireless facilities in Oro Valley is challenging. Crown could make this site pretty, but the impacts could be very damaging because it is so difficult to find alternative locations. It may be better left untouched. PUBLIC HEARING opened and closed at 7:05 p.m. there being no speakers. Commissioner McKee said the saving grace is that the utility lines are behind it and from Tangerine Road the pole is almost masked out by the utility lines. He was disappointed that there is no apparent way to plan for this eventually meeting the Code. MOTION: Commissioner Adler MOVED to forward OV8-95-1 A with a recommendation for approval, subject to the condition in the Revised Exhibit A. Commissioner Manross seconded the motion. December 6, 2005 Approved Minutes PLANNING AND ZONING COMMISSION 9 Commission Adler made the above motion because he thinks the appearance of the tower is "over the top". Tangerine Road is now a scenic corridor and the tower is highly visible. It impacts the residents and is offensive. Over time we need to apply reasonable conditions so any alterations require compliance. Motion FAILED on a tie vote, 3 yes, 3 no. Commissioners Adler, McKee and Manross voting yes; Commissioners Pivirotto, Bergman and Bistany voting no. MOTION: Commissioner Adler MOVED to forward OV8-95-1A, request for a Conditional Use Permit for Crown Castle to the Town Council with a recommendation for approval, subject to the following conditions: 1. Any alterations, changes (excluding basic maintenance/repairs) or added uses and/or appurtenances to the telecommunications pole shall necessitate conformance of the entire pole and equipment to the current Oro Valley Zoning Code Revised standards. 2. Any such change to the pole that decreases the intensity or brings it into closer conformance with the current Code will necessitate an amendment to the Conditional Use Permit. Motion seconded by Commissioner Bergman. Motion carried 4 yes, 1 no. Commissioner Pivirotto voting no. 3. SELECT A REPRESENTATIVE TO THE CAPITAL IMPROVEMENT PLAN TECHNICAL ADVISORY COMMITTEE Mr. Sinclair said every year the Town has a Capital Improvement Plan (CIP) program and there are a number of representatives on the Technical Advisory Committee that provide input to the CIP. One representative each is from the Planning and Zoning Commission, the Town Council, the Development Review Board, 2 citizens at large, as well as the regular Staff members. Vice Chair Bistany was the representative last year. He called for any volunteers. Commissioner Adler volunteered. MOTION: Vice Chair Bistany MOVED to nominate Commission Adler as the representative to the Capital Improvement Plan Technical Advisory Committee. Commissioner Manross seconded the motion. Motion carried 5 yes, 0 no. PLANNING UPDATE Mr. Sinclair gave the Planning Update. Three significant events have occurred over the last 30 days: December 6, 2005 Approved Minutes PLANNING AND ZONING COMMISSION 10 • The arrival of Sarah More to fill the position of Planning and Zoning Administrator on January 3, 2006. • The General Plan for Oro Valley was ratified by the voters on November 8, 2005. • The Town Council approved the amendments to the Commercial Code on November 10, 2005. ADJOURN REGULAR SESSION MOTION: Commissioner Manross MOVED to adjourn the December 6, 2005, Planning and Zoning Commission regular meeting. Commissioner McKee seconded the motion. Motion carried 5 yes, 0 no. Meeting adjourned at 7:25 p.m. Respectfully submitted, Diane Chapman, Recording Secretary