Meeting Information
-Convene
-Pledge of Allegiance
CONSENT AGENDA
(1) Consider approval of Commission Orders
REGULAR AGENDA
Planning Item:
(2) CUP-08-06-06: Conditional Use Permit for Verizon Wireless, for a 150', 4 carrier monopole tower and equipment shelter. The property is located at 1271 N 222 Road. Submitted by Verizon Wireless LLC, for Ronald E. and Margaret E. Shouse, property owners of record. This item was deferred from the September Planning Commission meeting. (Sheila Stogsdill)
(3) Other Business
(a) Consider approval of Accounts Payable (if necessary)
(b) Appointments
(c) Miscellaneous
(d) Public Comment
(4) Adjourn
Johnson called the meeting to order at 6:37 p.m. on Wednesday, December 6, 2006 with all members present.
CONSENT AGENDA 12-06-06
Jones moved approval of the following Consent Agenda:
► Approve Commissioners Order Nos. 06-183 and 06-184 (on file in the Office of the County Clerk); and
► Note receipt of fee reports for the month of October 2006
The motion was seconded by McElhaney and carried unanimously.
MISCELLANEOUS 12-06-06
Paul Bahnmaier, President of the Lane Museum, discussed the closing of Constitution Hall in Lecompton by the Kansas State Historical Society on a seasonal basis. Bahnmaier is concerned that the closing will affect the tourism and the economy of Lecompton and requested the Board to write a letter to the State Historical Society encouraging them to keep the museum open all year.
PLANNING 12-06-06
The Board discussed CUP-08-06-06 Conditional Use Permit for Verizon Wireless, for a 150', 4-carrier monopole tower and equipment shelter. The property is located at 1271 N 222 Road, the same property as the existing Baldwin Junction Greenhouse, a rural residential home and agricultural operation. The location is on the east side of Highway 59 and is accessed via a private road serving existing rural residential home sites. Application is submitted by Verizon Wireless LLC, for Ronald E. and Margaret E. Shouse, property owners of record.
Sheila Stogsdill, Acting Planning Director, was present for the discussion, introduced the topic, and provided an overview of the application. The matter was presented to the Board with a positive recommendation of Planning Staff, with 3 suggested conditions contained in the Staff Report, and a 5-4-1 positive recommendation of the Planning Commission. The Staff Report was received, with the Golden factors summarized by reference as follows:
Zoning and uses of property nearby. The subject property is zoned for agricultural uses. It is developed with an agricultural business operation - Baldwin Junction Greenhouse. The subject property d s not immediately abut Highway 59 and will not be affected by the revised alignment other than access changes to N 222 Road resulting from the Highway improvement project (scheduled 2000-2011). The new right-of-way line is estimated to be located 580' east of the existing center line of Highway 59. N 222 Road will connect to a new frontage road located along the east side of the Highway.
Character of the area. The subject property is accessed from a private road (N 222 Road). The property is not platted as a formal subdivision, but functions in a similar manner with multiple lots having access to an interior road. This road also provides access to the existing agricultural business (Baldwin Junction Greenhouse) and the residential homes in the immediate area. The area across Highway 59 to the west includes multiple parcels with large agricultural buildings along the highway. Homes are generally set back deeper into parcels away from the roadways. The agri-business is not part of a larger commercial node in the County located north of the subject property at the intersection of Highway 56 and Highway 59. This node is commonly referred to as Baldwin Junction.
The character of the area includes rural residential homes and agricultural fields and activities. The subject property is located south of the Highway 56/59 intersection known as Baldwin Junction.
Suitability of subject property for the uses to which it has been restricted. The subject property is part of an informal subdivision that was established through the private road/five-acre exemption provisions. The subject property is developed with an agricultural use including a residential home on the same property. The subject property is located east of Highway 59 and d s not take direct access to that roadway. The highway alignment is planned to be shifted to the east as a future improvement. The highway alignment will be altered in the future, but will not affect the subject property with the exception of access changes to the frontage road upon completion. The subject property is used as an active agricultural business (non-residential use). The greenhouse activity did not require approval of a Conditional Use Permit as an agricultural operation. The surrounding area land use includes existing rural residential homes and agricultural fields. There is a private airstrip located west of the subject property (CUP-07-02-00).
The proposed location reflects and attempt to locate on property that is of a commercial-type nature. However the property includes a single-family home and the surrounding area includes multiple single-family homes in the vicinity. The proposed change d s not alter the base Agricultural zoning district.
Length of time subject property has remained vacant as zoned. The subject is used as an existing agricultural business and is exempt from the Conditional Use Permit review process and an agricultural use. The property is developed with a residence built in 1999 and outbuildings associated with the agricultural business built in 2002. The property has been zoned for agricultural purposes since 1966.
Extent to which removal of restrictions will detrimentally affect nearby property. Approval of a Conditional Use Permit d s not alter the existing zoning district. The relative height of the structure is not detrimental to nearby residential properties. There is an existing private landing strip located to the west of the subject property located at 1222 N 200 Road (west of Highway 59) on a north/south path.
The general area is zoned agricultural but includes several rural residential homes. The perception of the tower, by residents of the area, may be considered a negative impact on the visual aesthetic of the area as a result of the addition of a tower in the area. There is no county zoning code provision to address aesthetic appearance of a communication tower. The code d s address "visual impact on the environment" as it relates to lighting (19-4 (31) (d) (6). This concern is expressed in the communications received by staff during the review period. The presence of a tower d s not affect the physical health, safety or welfare of residents in the area.
Approval of a Conditional Use Permit d s not amend the base zoning district requirements and land use limitations. Detrimental effects are related to perception concerns as expressed by residents of the area. There are no physical detriments of the proposed tower associated with the request.
Relative gain to the public health, safety and welfare by the destruction of the value of the petitioner's property as compared to the hardship imposed upon the individual landowners. Evaluation of the relative gain weighs the benefits to the community-at-large vs. the benefit of the owners of the subject property. Benefits are measured based on anticipated impacts of the request on the public's health, safety and welfare. The proposed use would improve service delivery to existing customers. The proposed site includes additional space for other carriers that could be co-located on the same structure in the future thus reducing the need for additional towers in the same location. Approval of the request is anticipated to improve communication service for users in the area and those in transit along the Highway 56/59 corridors.
There are no apparent physical detriments to the public health, safety, and welfare by the proposed request. Impacts to the area are one of an aesthetic nature as noted by comments received by staff during the review period from property owners in the area.
Conformance with the Comprehensive Plan. The Public Utility Strategies section provided in Horizon 2020 addresses utility needs in the community. These strategies are geared toward essential utilities, such as sewer and water, as well as electrical and telephone services that serve day-to-day needs. Horizon 2020 states:
- Plans should emphasize utility improvements and extensions that provide the highest level of service within existing service areas, particularly public water and wastewater treatment and collection.
- The visual appearance of utility improvements will be addressed to ensure compatibility with existing and planned land use areas.
- Wherever possible, the location of new major utility corridors should be preplanned to ensure land use compatibility and minimal disruption to existing development areas.
The Plan states that utilities need to be located and extended in a planned manner that is sensitive to public concerns. It is not feasible for all utilities to be located underground. The Plan speaks directly to electric transmission lines regarding the strong visual presence of some utilities, but the need to minimize the environmental and aesthetic impacts are relevant to this application as well.
The subject property is substantially setback from the highway as to be outside of the immediate corridor and in fact will not be directly impacted by the highway alignment change with the exception of a change in access via a new frontage road.
Horizon 2020 d s not directly address the issue of special uses. The plan provides basic guidance regarding major infrastructure improvements and urges that such uses to be carefully planned and provided. The provision of such services should be focused in existing service areas to address growth. Additionally, placement and visual appearance are a key consideration in creating compatibility. The plan notes that extension of electric and lard phone service connections to the proposed tower site will be underground.
Johnson then asked the applicant to deliver its presentation.
Curtis Holland, 6201 College Blvd, Overland Park, attorney speaking on behalf of the applicant Verizon Wireless and the owners of the subject land, stated the need for the tower is based on a significant coverage gap in service from south Lawrence to the Douglas County line. Highways 59 & 56 are heavily traveled and there is no co-location option. Holland referenced the CUP application, which was previously provided to the Commissioners. Holland explained the Verizon coverage gap that the application is intended to resolve. Holland stated most cell users expect to have cell service availability in both their cars and homes. There is an existing tower two miles north of the proposed site. The new tower site was selected to carry an 850 MHz signal to the Franklin County line without encroaching on the current 850 Mhz license in Franklin County and a 1900 Mhz signal that would cross over into Franklin County. Holland stated Verizon is not in the business to build towers but to provide wireless service. Verizon tries to find land uses that cause the least amount of conflict with adjoining residences.
Jones questioned if another vendor can provide service and if so can Verizon can tap into their tower. Holland replied all providers start from different sites, and then gaps are created. They tap in when they can. There is no tower they can utilize in this area. McElhaney asked the Planning Staff for a map showing how many towers currently exist in Douglas County and the distance between the towers.
Holland referenced the federal laws that relate to siting towers such as this, but generally preserves local zoning authority. Holland stated that the proposed tower has received approval from the FAA.
Johnson opened for public comment.
Leonard K zurowicz, 1266 N. 200 Road, stated he will have a view of tower and opposes the tower due to visual effects and noise and maintenance issues. He said he owns the property that is most effected by the proposed tower. He discussed two alternative locations that might be suitable for a cell tower, west of Highway 59 and South of Highway 56. He said the proposed site is in a primarily residential area, not commercial. He questioned whether the protest petition he signed was approved. Jones stated the Board did not receive a copy of the protest petition.
Pam Joachim, 1298 N. 200 Road, is opposed to the tower due to property value concerns. She also agrees with everything Mr. K zurowicz said. She also has Sprint and Cingular service with adequate coverage from both carriers, both from her house and from the highway. She questioned why the tower 2 miles to the north couldn't be utilized.
Leonard K zurowicz asked about the validity of the signed protest petition he gave to the Clerk's office. The Clerk's office time stamped it and kept it. Johnson stated the Clerk's Office should certify the signatures on the petition and send to the Commissioners the validity of the petition. Jones stated there is nothing the Board can do tonight but the issue will be addressed tomorrow. The petition will not change the outcome of the vote, but could change the legal effect of the vote (i.e. whether CUP approval requires 3-0 vote or only a 2-1 vote).
Holland stated that location at 56/59 Highways would not solve Verizon's coverage gap and that no matter where the tower is sited, someone would complain.
Judy K zurowicz, 1266 N. 200 Road, offered two addresses for alternative sites: 261 E 1260 Road and 236 E. 1250 Road.
Johnson closed public comment.
Johnson stated a valid petition would require a 3-0 vote to pass the CUP-08-06-06 request. Johnson understands why neighbors object and wouldn't want a tower in his back yard, but believes the application satisfies all requirements and should be approved.
Jones questioned whether the application suits the piece of property given the number of surrounding residential properties, and d s not feel the applicant meets the requirements of exhausting all services. He stated in the future that Planning Staff needs to utilize a third party reviewer, to provide technical expertise on these types of applications. He also noted that there was a deep split on the matter among the Planning Commission members.
McElhaney stated concerns about the number of towers in Douglas County and the fact there are two towers already in the area, one of which is only slightly over 2 miles to the north. He d sn't oppose cell towers in general, but d sn't believe that this is an appropriate location.
Jones stated that the applicant has failed to satisfy the requirement that all co-location possibilities be exhausted in a documented fashion because other cell service providers have adequate coverage in the area.
Stogsdill noted the need to adopt findings to support the Commission's action.
A discussion took place as to whether the Commission could deny the application without sending the matter back to the Planning Commission, but the Commission determined not to table the matter and to vote.
Jones moved to deny the application for CUP-08-06-06 Conditional Use Permit. Motion was seconded by McElhaney. The motion carried on a 2-1 vote with Johnson opposing. Staff was directed to prepare findings for the Commission to adopt to support the Commission's action.
Jones moved to adjourn the meeting. The motion was seconded by McElhaney and carried unanimously.
[Note: Subsequent to the adjournment of the meeting, the Douglas County Clerk certified that a valid protest petition with respect to CUP-08-06-06 was timely filed. This necessitates a 3-0 vote to approve the CUP. The protest petition did not change the legal effect of the Board's vote because it voted 2-1 to deny the CUP.]
_____________________________ _____________________________
Bob Johnson, Chairman Jere McElhaney, Member
ATTEST:
_____________________________ _____________________________
Jamie Shew, County Clerk Charles Jones, Member
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF
DOUGLAS COUNTY, KANSAS
APPLICATION OF VERIZON WIRELESS
FOR CONDITIONAL USE PERMIT FOR
WIRELESSS TELECOMMUNICATION FACILITY
CUP-08-06-06
FINDINGS OFF FACT AND CONCLUSIONS OF LAW
1. Verizon Wireless (referred interchangeably to as "Verizon" and the "Applicant"), as the tenant of a 100 foot by 100 foot tract of real estate owned by Ronald E. and Margaret E. Shouse, has filed an application for a Conditional Use Permit ("CUP Application") to construct, operate, and maintain a wireless telecommunication facility consisting of a 150 foot, 4-carrier monopole tower and associated ground based equipment, located on property at 1271 N. 222 Rd.
2. The subject site is located in an "A" Agricultural District, but is part of an informal subdivision that was established through the private road/5-acre exemption provisions of the Douglas County rural development regulations.
3. By Staff Report dated October 25, 2006, the Lawrence-Douglas County Metropolitan Planning Staff recommended that the CUP Application be granted, subject to certain conditions set forth therein.
4. On October 25, 2006, the Lawrence-Douglas County Metropolitan Planning Commission held a public hearing on the CUP Application. At the conclusion of the public hearing, the Lawrence-Douglas County Metropolitan Planning Commission voted 5-4-1 to recommend approval of the CUP Application, subject to certain conditions set forth in its Minutes from that meeting.
5. On December 6, 2006, the Board of County Commissioners of Douglas County, Kansas (the "Board") commenced a public hearing regarding the CUP Application. The hearing was lengthy and the Board allowed all persons present at the hearing to provide comments.
6. As a result of the 5-4-1 positive recommendation of the Lawrence-Douglas County Metropolitan Planning Commission to approve the CUP Application, the Board can (1) adopt the recommendation of the Planning Commission and approve the CUP Application, (2) override the recommendation of the Planning Commission by a 2/3rds majority vote of the membership of the Board and deny the CUP Application, or (3) return the recommendation to the Planning Commission with a statement specifying the basis for the Board's failure to approve or disapprove the CUP Application.
7. On November 6, 2006, a protest petition was filed with the Douglas County Clerk, protesting the granting of the CUP. At the time of the December 6, 2006 hearing, the protest petition had not been validated. The Douglas County Clerk subsequently certified the protest petition as valid on December 16, 2006. As a result, Section 19-1.05 of the Douglas County Zoning Regulations requires at least a 3/4th vote of all members of the Board to approve the CUP Application. With only three members of the Board, unanimous approval is required.
8. The Board has the authority to review and to either approve or disapprove the CUP Application under K.S.A. 12-755(a)(5) and Article 19 of the Douglas County Zoning Regulations. Section 19-4(31) of the Douglas County Zoning Regulations permits the erection of radio, television, telecommunication, and microwave towers upon receipt of a conditional use permit.
9. Conditional use permits are based upon the zoning power of the Board and, by definition, empower the Board to approve, deny, or approve with conditions, as the Board determines appropriate to protect the health, safety and welfare of the public.
10. Section 19-1.02 of the Douglas County Zoning Regulations require the consideration of relevant facts, including the following, in determining to grant a conditional use permit:
a. The zoning uses of properties nearby.
b. Character of the area.
c. Suitability of the subject property for the uses to which it has been restricted.
d. Length of time the property has remained vacant as zoned.
e. Extent to which the change will detrimentally affect the nearby property.
f. Relative gain to the public health, safety, and welfare by destruction in value of the petitioner's property as compared to the hardship imposed upon the individual landowners.
g. Conformance with the Comprehensive Plan.
h. Professional staff recommendation.
These factors are virtually identical to and incorporated from the considerations set forth in applicable Kansas cases. See Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978) (setting forth a list of factors (referred to as the "Golden factors") for consideration in rezoning cases); K-S Center Co. v. City of Kansas City, 238 Kan. 482, 494-95, 712 P.2d 1186 (1986) (stating that the rules governing issuance of a conditional use permit are similar to those factors applicable in rezoning cases).
11. With respect to the foregoing factors, the Board makes the following findings:
A. ZONING AND USES OF PROPERTY NEARBY
The subject property is zoned for agricultural uses. It is developed with an agricultural operation (Baldwin Junction Greenhouse) on site . The subject property d s not immediately abut Highway 59 and will not be affected by the revised alignment other than access changes to N. 222 Rd. resulting from the Highway improvement project (scheduled 2009-2011). The new right-of-way line is estimated to be located 580' east of the existing center line of Highway 59. N 222 Road will connect to a new frontage road located along the east side of the Highway.
B. CHARACTER OF THE AREA
The subject property is accessed from a private road (N 222 Rd.). The property is not platted as a formal subdivision, but functions in a similar manner with multiple lots having access to an interior road. This road also provides access to the existing agricultural operation (Baldwin Junction Greenhouse) and the rural residential homes in the immediate area. The area across Highway 59 to the west includes multiple parcels with large agricultural buildings along the highway. The character of the area is a rural residential setting with agricultural fields and activities. The rural residences are generally set back deeper into parcels away from the roadways. The on-site agricultural operation is not part of a commercial node in the County located north of the subject property at the intersection of Highway 56 and Highway 59. This commercial node is commonly referred to as Baldwin Junction. The Board concludes that a communications tower is not compatible with the nearby surrounding residential area.
C. SUITABILITY OF SUBJECT PROPERTY FOR THE USES TO WHICH IT HAS BEEN RESTRICTED
The subject property is part of an informal subdivision that was established through the private road/five-acre exemption provisions. The subject property is developed with an agricultural use including a residential home on the same property. The subject property is located east of Highway 59 and d s not take direct access to that roadway. The highway alignment is planned to be shifted to the east as a future improvement. The highway alignment will be altered in the future, but will not affect the subject property with the exception of access changes to the frontage road upon completion. The subject property is used as both a residential use and an active agricultural business (non-residential use). The greenhouse activity did not require approval of a Conditional Use Permit as an agricultural operation. The surrounding area land use includes existing rural residential homes and agricultural fields. There is a private airstrip located west of the subject property (CUP-07-02-00).
According to the applicant, the proposed location reflects and attempt to locate on property that is of a commercial-type nature. However, the greenhouse is an agricultural use and not a commercial use and the property includes a single-family home and the surrounding area includes multiple single-family homes in the vicinity.
D. LENGTH OF TIME SUBJECT PROPERTY HAS REMAINED VACANT AS ZONED
The subject property is not vacant. It is used as an existing residential use and a greenhouse. The greenhouse operates exempt from the Conditional Use Permit review process as an agricultural use. The property is developed with a residence built in 1999 and outbuildings associated with the agricultural business built in 2002. The property has been zoned for agricultural purposes since 1966.
E. EXTENT TO WHICH REMOVAL OF RESTRICTIONS WILL DETRIMENTALLY AFFECT NEARBY PROPERTY
Approval of a Conditional Use Permit d s not alter the existing zoning district, but it would permit a 150 foot communication tower to be erected. The relative height of the structure is not physically detrimental to nearby residential properties, but is visually objectionable. There is an existing private landing strip located to the west of the subject property located at 1222 N 200 Road (west of Highway 59) on a north/south path.
The area is zoned agricultural, but includes several rural residential homes. The erection of the tower is considered by residents of the area to cause a negative visual effect. The Board disagrees with provisions in the Staff Report that indicate that the Douglas County Zoning Regulations contain no provision that addresses aesthetic appears of a communications tower. The Zoning Regulations specifically address the "visual impact on the environment" of a communications tower (Section 19-4(31)(d)(6)), and the Board finds that a tower at this site would produce an adverse visual effect on the environment and that adverse visual effect needs to be weighed against the extent of the Applicant's coverage gap, alternate coverage in the area, and alternate possibilities to the Applicant.
F. RELATIVE GAIN TO THE PUBLIC HEALTH, SAFETY AND WELFARE BY THE DESTRUCTION OF THE VALUE OF THE PETITIONER'S PROPERTY AS COMPARED TO THE HARDSHIP IMPOSED UPON THE INDIVIDUAL LANDOWNERS
Evaluation of the relative gain weighs the benefits to the community-at-large vs. the benefit of the owners of the subject property. Benefits are measured based on anticipated impacts of the request on the public's health, safety and welfare. The existing tract of real estate is already in productive use, consisting of a rural residence and an agriculturally-related greenhouse. According to the Applicant, the proposed tower would improve service delivery to its customers and includes additional space for other carriers to co-locate. Approval of the request may improve communication service for users within a small area and those in transit along the Highway 56/59 corridors, as the Applicant states, but there is a Verizon tower only 2 miles to the south, leading the Board to conclude that the alleged coverage gap cannot be very large. In addition, two other national wireless service providers have adequate service in the area, and one of the frequencies the Applicant plans to broadcast from the proposed tower is not licensed in Franklin County and, therefore, cannot travel beyond the Douglas County line (2 miles to the south). Given the foregoing, the Board is not prepared to accept the assertion that the alleged coverage gap cannot be eliminated by other means without the necessity of erection of a new tower at the proposed. The Board finds that the applicant has failed to satisfy the requirement that all co-location possibilities be exhausted in a documented fashion because other cell service providers have adequate coverage in the area, and concludes that the benefits of the proposed tower do not offset the detriments.
G. CONFORMANCE WITH THE COMPREHENSIVE PLAN
The Public Utility Strategies section provided in Horizon 2020 addresses utility needs in the community. These strategies are geared toward essential utilities, such as sewer and water, as well as electrical and telephone services that serve day-to-day needs. Horizon 2020 states:
Plans should emphasize utility improvements and extensions that provide the highest level of service within existing service areas, particularly public water and wastewater treatment and collection.
The visual appearance of utility improvements will be addressed to ensure compatibility with existing and planned land use areas.
Wherever possible, the location of new major utility corridors should be preplanned to ensure land use compatibility and minimal disruption to existing development areas.
The Plan states that utilities need to be located and extended in a planned manner that is sensitive to public concerns. It is not feasible for all utilities to be located underground. The Plan speaks directly to electric transmission lines regarding the strong visual presence of some utilities, but the need to minimize the environmental and aesthetic impacts are relevant to this application as well.
Horizon 2020 d s not directly address the issue of special uses. The Plan provides basic guidance regarding major infrastructure improvements and urges that such uses be carefully planned and provided. Additionally, placement and visual appearance are a key consideration in creating compatibility. Based upon number of towers in the area and the small gap that the Applicant states it has in its coverage, the Board cannot conclude that erecting a tower at the proposed site satisfies the Plan requirement that the use be carefully planned and provided.
H. PROFESSIONAL STAFF RECOMMENDATION
Douglas County's professional planning staff has recommended approval of the CUP Application with several stated conditions. This recommendation is but one factor in the Board's decision, but d s not mandate that the Board grant the CUP Application. The ultimate authority to grant or deny the CUP Application rests with the Board. If the Board was required to follow the professional planning staff recommendation, there would be no need for hearing before the Planning Commission and the Board, which of course is incorrect. The Board, after careful consideration, has determined that this particular site is not appropriate for the proposed tower. The Board d s not believe that the Applicant has established that it has exhausted all other, less intrusive, alternatives or sites to resolve its relatively small coverage gap, particularly because it has a tower only 2 miles to the north and at least two other service providers have adequate coverage in the area.
12. Based upon the foregoing and all other evidence submitted to the Board, the Board hereby denies the CUP Application.
The Board hereby adopts and confirms the foregoing Findings of Fact and Conclusions of Law on the 17th day of January, 2007.
Dissenting________________________________
Bob Johnson, Chair
________________________________________
Jere McElhaney, Member
________________________________________
Charles Jones, Member
Time and Date