Loading...
Findings - CC - 2015 - CU-01-14 - Camouflaged Cell Tower/Eagle Hills Golf Course Hole #2 BEFORE THE EAGLE CITY COUNCIL IN THE MATTER OF AN APPLICATION ) FOR A CONDITIONAL USE PERMIT ) FOR A 110-FOOT HIGH CAMOUFLAGED ) CELL TOWER/PERSONAL WIRELESS ) FACILITY(HEIGHT-OVER 35 FEET) ) FOR SKYWAY TOWERS, LLC ) FINDINGS OF FACT AND CONCLUSIONS OF LAW CASE NUMBER CU-01-14 The above-entitled conditional use permit application came before the Eagle City Council for their consideration on July 8, 2014, at which time public testimony was taken and the public hearing was closed. On July 22, 2014, the City Council reviewed the findings of fact and conclusions of law regarding the City Council's July 8, 2014, decision. The City Council provided staff additional direction and remanded the findings of fact and conclusions of law to staff for revisions and directed staff to bring the amended findings of fact to their next scheduled meeting. On August 26, 2014, the City Council continued the findings of fact and conclusions of law to the September 9, 2014, meeting. On September 9, 2014, prior to the City Council approving the findings of fact and conclusions of law the applicant requested mediation pursuant to I.C. 67-6510. The Council discussed the mediation option and pursuant to I.C. 67-6510, directed staff and Council representatives to mediate with the applicant and other affected parties and bring potential changes back for Council consideration at a future date. Mediation sessions were conducted on October 3, 2014, and January 9, 2015. Upon completion of the mediation sessions an agreement could not be reached among the parties to resolve the proposed facility site. All parties did agree to supplement the record to include a study regarding propagation and coverage within the proposed service area by Trott Communications("Trott Study"). On January 27, 2015, the City Council conducted another public hearing on the application to consider personal wireless facility tower(s) options presented by the applicant. During the public hearing the applicant submitted five (5) options for construction of a personal wireless facility tower(s). At the conclusion of the public hearing the City Council closed the oral portion of the public hearing and additional written comment(limited to the Trott Study)to be submitted to the City on or before February 5, 2015, and continued the hearing to February 10, 2015. The Eagle City Council having heard and taken oral and written testimony, and having duly considered the matter, makes the following Findings of Fact and Conclusions of Law: A. PROJECT SUMMARY: Skyway Towers, LLC, represented by Shawn Nickel with SLN Planning, is requesting conditional use permit approval for a camouflaged cell tower (defined as "personal wireless facility height- over 35-feet" in Eagle City Code). The proposed 2,500-square foot lease area is located approximately 835-feet southwest of the intersection of North Eagle Hills Way and North Wingfoot Place at the southern boundary of Eagle Hills Golf Course within the area containing hole#2. Page 1 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccfdoc B. APPLICATION SUBMITTAL: A Neighborhood Meeting was held at Eagle City Hall at 6:00 PM, Monday, January 13, 2014, in compliance with the application submittal requirement of Eagle City Code. The application for this item was received by the City of Eagle on January 30, 2014. C. NOTICE OF PUBLIC HEARING: Notice of Public Hearing on the application for the Eagle Planning and Zoning Commission was published in accordance with the requirements of Title 67, Chapter 65, Idaho Code and the Eagle City Code on February 24, 2014. Notice of this public hearing was mailed to property owners within 1000-feet of the leased area in accordance with the requirements of Title 67, Chapter 65, Idaho Code and Eagle City Code on February 20, 2014. The site was posted in accordance with the Eagle City Code on March 7, 2014. Requests for agencies' reviews were transmitted on February 7, 2014, in accordance with the requirements of the Eagle City Code. Due to the application being remanded the application was re-noticed.Notice of Public Hearing on the application for the Eagle Planning and Zoning Commission was published in accordance with the requirements of Title 67, Chapter 65, Idaho Code and the Eagle City Code on April 28, 2014. Notice of this public hearing was mailed to property owners within 1000-feet of the leased area in accordance with the requirements of Title 67, Chapter 65, Idaho Code and Eagle City Code on April 25, 2014. The site was posted in accordance with the Eagle City Code on May 9, 2014. Notice of Public Hearing on the application for the Eagle City Council was published in accordance with the requirements of Title 67, Chapter 65, Idaho Code and the Eagle City Code on June 23, 2014. Notice of this public hearing was mailed to property owners within 1000-feet of the leased area in accordance with the requirements of Title 67, Chapter 65, Idaho Code and Eagle City Code on June 20, 2014. The site was posted in accordance with the Eagle City Code on June 25, 2014, Post Mediation: Notice of Public Hearing on the application for the Eagle City Council was published in accordance with the requirements of Title 67, Chapter 65, Idaho Code on January 12, 2015. A courtesy notice of this public hearing was mailed to property owners within 1000-feet of the leased area on January 15, 2015. The site was posted in accordance with the Eagle City Code on January 16, 2015. D. HISTORY OF RELEVANT PREVIOUS ACTIONS:None E. COMPANION APPLICATIONS: Design review to construct a 110-foot high camouflaged cell tower/monopole and equipment storage area for a personal wireless facility(DR-10-14). Page 2 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccf doc F. COMPREHENSIVE PLAN LAND USE MAP AND ZONING MAP DESIGNATIONS: COMP PLAN ZONING LAND USE DESIGNATION DESIGNATION Existing Public/Semi-Public R-4 (Residential) Eagle Hills Golf Course (Hole#2) Proposed No Change No Change Personal wireless facility (height-over 35 feet) North of site Residential Four(up to R-4 (Residential) Residential subdivision— four units/acre) Eagle Hills West Subdivision No. 1 South of site Downtown A(Agricultural) Vacant land East of site Residential Four(up to R-4(Residential) Residential subdivision— four units/acre) Eagle Hills West Subdivision No. 1 West of site Residential Four(up to R-4 (Residential) Residential subdivision— four units/acre) Eagle Hills West Subdivision No. 4 G. DESIGN REVIEW OVERLAY DISTRICT:Not in the DDA, TDA, CEDA, or DSDA. H. EXISTING SITE CHARACTERISTICS: The proposed leased site is a portion of fairway#2 located within the Eagle Hills Golf Course. SITE DESIGN INFORMATION: SITE DATA PROPOSED REQUIRED Total Acreage of Site 16.6-acres(leased area N/A consists of 2,500-square feet) Percentage of Site Devoted to Building Up to 64.4% N/A Coverage Setback(east) 229-feet 220-feet* * Pursuant to Eagle City Code Section 8-3-5 (S)(5)(b), the personal wireless facility shall be setback a minimum distance of 2X the height of the tower from the property line of any residential dwelling. J. GENERAL SITE DESIGN FEATURES: Number and Uses of Proposed Buildings: The applicant is proposing to construct one (1) equipment shelter to be located on the south side of the personal wireless facility within the 2,500-square foot leased area. The applicant is proposing to construct an eight-foot(8')high cedar fence to secure the site. Page 3 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccfdoc Height and Number of Stories of Proposed Buildings: The equipment shelter is proposed to be approximately 10-feet high. Gross Floor Area of Proposed Buildings: 299-square feet On and Off-Site Circulation: A gravel road is proposed providing access from Eagle Hills Way to the east side of the leased area. K. PUBLIC SERVICES AVAILABLE: The site is located within an area serviced by Eagle Fire Department, Eagle Water Company, and Eagle Sewer District. The personal wireless facility site will not require water or sewer. L. PUBLIC USES PROPOSED:None M. PUBLIC USES SHOWN ON FUTURE ACQUISITIONS MAP:No map currently exists N. SPECIAL ON-SITE FEATURES: Areas of Critical Environmental Concern—none Evidence of Erosion—no Fish Habitat—no Floodplain—no Mature Trees—no Riparian Vegetation—no Steep Slopes—There is a slope in excess of 3:1 located adjacent to the southern property line. Stream/Creek—no Unique Animal Life—unknown Unique Plant Life—unknown Unstable Soils—unknown Wildlife Habitat—unknown O. SUMMARY OF REVIEW OF ENVIRONMENTAL ASSESSMENT PLAN (IF REQUIRED): Not required P. AGENCY RESPONSES: The following agencies have responded and their correspondence is attached to the staff report. Comments, which appear to be of special concern, are noted below: City Engineer: All comments within the engineer's letter dated March 7, 2014, are of special concern(attached to the staff report). Boise Airport Commission Federal Aviation Administration Department of Environmental Quality Eagle Fire Department Idaho Transportation Department(Division of Aeronautics) Q. LETTERS FROM THE PUBLIC (attached to the staff report): Email correspondence forwarded from Shawn Nickel, dated March 19, 2014, indicating the Boise Airport Commission has no objection to the proposed cell tower Correspondence provided by the Idaho Transportation Department, date stamped by the City on April 9, 2014, indicating the proposed cell tower will not be a hazard to air navigation Page 4 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccf doc Correspondence provided by the Federal Aviation Administration, date stamped by March 24, 2014, indicating the proposed structure will not be a hazard to air navigation Photos of the proposed site, date stamped by the City on April 9, 2014, showing before construction and after construction of the proposed cell tower Email correspondence received from Charlotte Boyd, dated March 12, 2014 Email correspondence received from Lavina Pratt dba Eagle Hills Props', dated March 12, 2014 Email correspondence received from Lavina Pratt dba Eagle Hills Props', dated March 12, 2014 Email correspondence received from Jason Watt, dated March 16, 2014 Email correspondence received from Jason Watt, dated March 16, 2014 Email correspondence received from Judith D. James, dated March 16, 2014 Email correspondence received from Shawn Nickel, dated March 16, 2014 Email correspondence from Mike Williams to Shawn Nickel, dated March 17, 2014 Petition to the Mayor of Eagle and City Council regarding the proposed location of the cell tower, date stamped by the City on March 17, 2014. Email correspondence received from Jason Watt, dated March 18, 2014 Email correspondence received from Lavina Pratt dba Eagle Hills Properties, dated March 24, 2014 Correspondence received from George W. and Melinda Schnarre, date stamped by the City on March 31, 2014 Email correspondence received from Jason Watt, dated April 22, 2014 Email correspondence from Stephen J. Lord (on behalf of Protect Eagle Neighborhoods, Inc. "PEN")(on behalf of Protect Eagle Neighborhoods, Inc. "PEN"), dated April 21, 2014 Email correspondence forward from City Councilman Butler, dated April 30, 2014 Email correspondence forwarded from City Councilman Butler, dated April 30, 2014 Correspondence received from Mary Folger, date stamped by the City on May 6, 2014 Correspondence received from Alice and Lewis Barrett, date stamped by the City on May 9, 2014 Correspondence received from Stephen J. Lord (on behalf of Protect Eagle Neighborhoods, Inc. "PEN") (on behalf of Protect Eagle Neighborhoods, Inc. "PEN"), date stamped by the City on May 12, 2014 Correspondence received from David Schwartz, date stamped by the City on May 12, 2014 Email correspondence forwarded from Tammy Gordon(Mayor's assistant), dated May 20, 2014 Email correspondence forwarded from Tammy Gordon(Mayor's assistant), dated May 21,2014 Email correspondence received from Lavina Pratt, dated May 23, 2014 Email correspondence from Bill Vaughan (Zoning Administrator) to Jason Watt, dated June 3, 2014 Correspondence received from Darell and Judie Tschacher, date stamped by the City on June 13, 2014 Correspondence received from George and Melinda Schnarre, date stamped by the City on June 23, 2014 Email correspondence received from Hazel Segerdal, dated June 30, 2014 Correspondence received from David Schwartz, date stamped by the City on June 30, 2014 Correspondence received from Debra Helton, date stamped by the City on June 30, 2014 Correspondence received from Robert Helton, date stamped by the City on June 30, 2014 Correspondence received from Kyle Weeks, date stamped by the City on June 30, 2014 Correspondence received from Amanda Mumford, date stamped by the City on June 30, 2014 Correspondence received from Stephen J. Lord (on behalf of Protect Eagle Neighborhoods, Inc. "PEN") (on behalf of Protect Eagel Neighborhoods, Inc. "PEN"), date stamped by the City on June 30, 2014 Email correspondence(with attachment)received from Jason Watt, dated July 1, 2014 Correspondence received from Jeremy Russell, date stamped by the City on July 1, 2014 Page 5 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccfdoc R. ADDITIONAL INFORMATION PROVIDED BY THE APPLICANT (attached to the staff report): Correspondence to Skyway Towers from Powder River Development Services, date stamped by the City on June 30, 2014 Petition from downtown Eagle businesses, date stamped by the City on June 30, 2014 Correspondence received from Fox Surveys, date stamped by the City on June 30,2014 Correspondence received from Idaho Transportation Department, date stamped by the City on June 30, 2014 Investigations of foliage effect on modern wireless communication systems, date stamped by the City on June 30, 2014 Sputnik white paper on RF Propagation Basics, date stamped by the City on June 30, 2014, % of FCC Public Exposure Limit, date stamped by the City on June 30, 2014 Appraisal Consulting Report (cell tower study — Denver Colorado), date stamped by the City on June 30, 2014 Appraisal Consulting Report (Milton, Saratoga County, New York), date stamped by the City on June 30, 2014 Materials supporting application to construct a wireless broadband service tower at Eagle Hills Golf Course(powerpoint presentation), date stamped by the City on June 30, 2014 *(see note) Radiofrequency Exposure and Potential Health Effects (powerpoint presentation), date stamped by the City on June 30, 2014 Health Effects From Radiofrequency Electromagnetic Fields, date stamped by the City on June 30, 2014 Petition from downtown Eagle businesses, date stamped by the City on July 1, 2014 *(Note—within the powerpoint presentation the applicant identified an area where coverage may be needed as the "Gap". The "Gap" is defined as an area where customer usage has increased to the point that the radio frequencies lack the capacity to reliably carry the service area's wireless traffic.) S. LETTERS FROM THE PUBLIC (POST MEDIATION) (attached to staff memos to the Mayor and City Council, dated February 5 and February 6, 2015): Correspondence received from J. Shad Rydalch with AT&T, date stamped by the City on January 27, 2015 Email correspondence received from Scott Thompson, dated January 27, 2015 Correspondence received from Mr. and Mrs. Chadwick Richey, date stamped by the City on January 30, 2015 Correspondence received from George W. and Melinda Schnarre, date stamped by the City on January 30, 2015 Email correspondence received from Doug Foote with D&J Enterprises, dated February 1, 2015 Correspondence received from Fred and Andrea Heidt, date stamped by the City on February 2, 2015 Email correspondence received from Robert Helton, dated February 4, 2015 Email correspondence received from Pat and Karen Towne, dated February 5, 2015 Email correspondence received from Stephen J. Lord(on behalf of Protect Eagle Neighborhoods, Inc. "PEN")(on behalf of Protect Eagle Neighborhoods,Inc. "PEN"), dated February 5, 2015 Email correspondence received from Stephen J. Lord(on behalf of Protect Eagle Neighborhoods, Inc. "PEN") (on behalf of Protect Eagle Neighborhoods,Inc. "PEN"), dated February 5, 2015 Page 6 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-Ol-14 Skyway Towers post mediation ccfdoc Correspondence(attached to second email)received from Stephen J. Lord(on behalf of Protect Eagle Neighborhoods,Inc. "PEN")(on behalf of Protect Eagle Neighborhoods, Inc. "PEN"), date stamped by the City on February 5, 2015 Email correspondence received from Stephen J. Lord(on behalf of Protect Eagle Neighborhoods, Inc. "PEN")(on behalf of Protect Eagel Neighborhoods, Inc. "PEN"), dated February 5, 2015 Correspondence received from David, CeAnna, Hannah, and Taylor Schwartz, date stamped by the City on February 5, 2015 T. ADDITIONAL INFORMATION PROVIDED BY THE APPLICANT (POST MEDIATION) (attached to staff memos to the Mayor and City Council, dated February 5 and February 6, 2015): Skyway Towers, Option 1, Elevation, date stamped by the City on January 30, 2014 Skyway Towers, Option 2, Elevation, date stamped by the City on January 27, 2015 Skyway Towers, Option 3, Site Plan, date stamped by the City on January 27, 2015 Skyway Towers, Option 3, Elevation, date stamped by the City on January 27, 2015 Skyway Towers, Option 4, Site Plan, date stamped by the City on January 27, 2015 Skyway Towers, Option 4, Elevation, date stamped by the City on January 27, 2015 Correspondence received from Daniel P. Behuniak with Skyway Towers, date stamped by the City on February 5, 2015 U. IDAHO CODE 67-6510 MEDIATION—TIME LIMITATIONS TOLLED: (1) The procedure established for the processing of applications by this chapter or by local ordinance shall include the option of mediation upon the written request of the applicant, an affected person, the zoning or planning and zoning commission or the governing board. Mediation may occur at any point during the decision-making process or after a final decision has been made. If mediation occurs after a final decision, any resolution of differences through mediation must be the subject of another public hearing before the decision-making body. (2) The applicant and any other affected persons objecting to the application shall participate in at least one (1) mediation session if mediation is requested by the commission or the governing board. The governing board shall select and pay the expense of the mediator for the first meeting among the interested parties. Compensation of the mediator shall be determined among the parties at the outset of any mediation undertaking. An applicant may decline to participate in mediation requested by an affected person, and an affected person may decline to participate in mediation requested by the applicant, except that the parties shall participate in at least one (1)mediation session if directed to do so by the governing board. (3) During mediation, any time limitation relevant to the application shall be tolled. Such tolling shall cease when the applicant or any other affected person, after having participated in at least one (1) mediation session, states in writing that no further participation is desired and notifies the other parties, or upon notice of a request to mediate wherein no mediation session is scheduled for twenty-eight(28)days from the date of such request. (4) The mediation process may be undertaken pursuant to the general limitations established by this section or pursuant to local ordinance provisions not in conflict herewith. (5) The mediation process shall not be part of the official record regarding the application. Page 7 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccfdoc STAFF ANALYSIS PROVIDED WITHIN THE STAFF REPORT: A. COMPREHENSIVE PLAN PROVISIONS, WHICH ARE OF SPECIAL CONCERN REGARDING THIS PROPOSAL: Chapter 4—Schools, Public Services, and Utilities 4.9.2 Other Services and Utilities Goals F. Telephone and Telecommunications: Provide existing and future residents in the City of Eagle, the Area of Impact and the foothills with uninterrupted access to up-to-date, state-of-the-art telephone and telecommunications service. 4.9.3 Other Services and Utilities Objectives: A. Discourage over lapping service areas and/or illogical service boundaries. 4.9.4 Other Services and Utilities Implementation Strategies: F. Telephone and Telecommunications: 1. The City should encourage telephone and telecommunications companies to follow the relevant implementation strategies recommended in section 4.9.3 A above. B. ZONING ORDINANCE PROVISIONS, WHICH ARE OF SPECIAL CONCERN REGARDING THIS PROPOSAL: • Eagle City Code Section 8-1-2 defines Personal Wireless Facility(Height-over 35 feet) as: Facilities necessary for the provision of personal wireless services (i.e., towers, support buildings, etc.). • Eagle City Code Section 8-2-3 Schedule of District Use Regulations: Personal Wireless Facilities (height-over 35 feet) requires the approval of a conditional use permit within the R zoning district. • Eagle City Code Section 8-3-5 (S) Personal Wireless Facilites, Spires, Poles, Antennas, Steeples, Towers, and Other Such Structures. 2.c. Residential(R)Districts: (2)Personal Wireless Facilities shall be camouflaged or concealed,not readily identifiable as such, designed to be aesthetically compatible with existing and proposed uses on the site in all residential (R)zones. 3. Collocation Requirements: a. A proposal for a new tower mounted Personal Wireless Facility in excess of thirty five feet(35') in height shall not be approved unless the city council finds that the telecommunications equipment planned for the proposed tower cannot be accommodated on an existing or approved tower or building within the following radii of the proposed tower: (2)A one mile radius for towers with a height over eighty feet(80')but not more than one hundred ten feet(110'). 4. Tower And Antenna Design Requirements: a. All Personal Wireless Facilities shall be required to obtain design review approval prior to construction. Page 8 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccf doc b. Personal Wireless Facility towers shall be of a monopole design unless the city council determines that an alternative design would better blend into the surrounding environment. 5. Tower Setbacks: b. The base of the Personal Wireless Facility shall be setback a minimum distance of two times (2x)the height of the tower from the property line of any residential dwelling. 8. Accessory Utility Buildings: a. All utility buildings and structures accessory to a tower are required to have design review approved by the city prior to construction. 9. Abandoned Or Unused Towers Or Portions Of Towers: a. As a condition of approval of any required conditional use permit for personal wireless facilities, all abandoned or unused towers and associated facilities shall be required to be removed within sixty(60) days of cessation of use as a Personal Wireless Facility unless a time extension is granted by the city. A copy of the relevant portions of a signed lease, which requires the applicant to remove the tower and associated facilities upon cessation of the use as a Personal Wireless Facility, shall be submitted at the time of application. In the event that the tower and associated facilities are not removed within the sixty (60) days, the tower and associated facilities may be removed by the city and the costs of removal assessed against the property. 10. Additional Application Submittal Requirements: a. In addition to the information required elsewhere in this code, development applications for personal wireless facilities, shall include the following supplemental information: (1) Documentation from a qualified and licensed professional engineer showing that the proposed facility will be in compliance with the FCC standards regarding radio frequency(RF)emissions. (2) A report from a qualified and licensed professional engineer which describes the tower height and design (including a cross section and elevation); documents the height above grade for all potential mounting positions for collocated antennas and the minimum separation distances between antennas; describes the tower's capacity, including the number and type of antennas that it can accommodate; documents what steps the applicant will take to avoid interference with established public safety telecommunications; includes an engineer's stamp and registration number; and includes other information necessary to evaluate the request. (3) For all personal wireless facilities, a letter of intent committing the tower owner and his or her successors to allow the shared use of the tower, as required by this code, if an additional user agrees in writing to meet reasonable terms and conditions for shared use. (4) Documentation showing that the proposed tower complies with regulations administered by federal aviation administration. (5) Written approval of the site location with specific reference to the height of the antenna structure and any lighting issues, from the federal aviation administration, the chief of the Idaho bureau of aeronautics, and the Boise airport commission and an aviation easement approved by the Boise airport commission. Page 9 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccf doc (6) Propagation charts showing existing and proposed transmission coverage at the subject site and within an area large enough to provide an understanding of why the facility needs to be in the chosen location. (7) A written analysis demonstrating that the proposed site is the most appropriate site within the immediate area. For the purposes of this subsection, the analysis shall include all properties within the search radii stated above. The analysis shall include, but is not limited to,the following: (A)Description of the surrounding area, including topography; (B)Natural and manmade impediments that would obstruct adequate cellular telephone transmissions; (C)Physical site constraints that would preclude construction of a cellular telephone facility on any other site; (D)Technical limitations of the system that limit siting options. 11. Permits: c. In addition to the findings required and conditions permitted for conditional use permits, as stated within section 8-7-3 of this title, the city council shall make an additional finding concerning the duration of the conditional use permit. Upon finding that the conditional use permit is to be limited in duration, a condition limiting the duration and the basis for such a condition shall be included within the findings of fact and conclusions of law for the conditional use permit. 12. Additional Requirements For Notice Of Public Hearing: a. All Personal Wireless Facilities requiring a conditional use permit shall comply with the conditional use notice requirements within this code. Tower mounted Personal Wireless Facilities shall comply with the following additional requirements: (1) All property owners within one thousand feet (1,000') of all property lines of the site (or lease boundary lines, if applicable) shall be notified of the public hearing by the city, by mail, a minimum of fifteen (15) days before the scheduled public hearing. The applicant will be required to provide the names of the property owners to the city. • Eagle City Code Section 8-7-3-2 General Standards for Conditional Uses: The Commission/Council shall review the particular facts and circumstances of each proposed Conditional Use in terms of the following standards and shall find adequate evidence showing that such use at the proposed location: A. Will, in fact, constitute a conditional use as established in Section 8-2-3 of this title (Eagle City Code Title 8) for the zoning district involved; B. Will be harmonious with and in accordance with the general objectives or with any specific objective of the Comprehensive Plan and/or this title(Eagle City Code Title 8); C. Will be designed, constructed, operated and maintained to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and that such use will not change the essential character of the same area; D. Will not be hazardous or disturbing to existing or future neighborhood uses; E. Will be served adequately by essential public facilities such as highways, streets, police and fire protection, drainage structures, refuse disposal, water and sewer and schools; or Page 10 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccf doc that the persons or agencies responsible for the establishment of the proposed use shall be able to provide adequately any such services. F. Will not create excessive additional requirements at public cost for public facilities and services and will not be detrimental to the economic welfare of the community; G. Will not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons, property or the general welfare by reason of excessive production of traffic, noise, smoke, fumes, glare or odors; H. Will have vehicular approaches to the property which are designed as not to create an interference with traffic on surrounding public thoroughfares; and I. Will not result in the destruction, loss or damage of a natural, scenic or historic feature of major importance. C. DISCUSSION: • The applicant is proposing to construct a 110-foot high mono-pole personal wireless facility camouflaged as a pine tree to be located adjacent to the southern property line of Eagle Hills Golf Course on fairway#2 approximately 900-feet southwest of the intersection of East Eagle Hills Way and North Winged Foot Place. As proposed, the personal wireless facility will have sufficient room to allow for five (5) carriers to co-locate antennae facilities on the mono-pole structure. The applicant provided photo simulations, date stamped by the City on January 30, 2014, showing the personal wireless facility to be approximately twice as high as the surrounding tree canopy. Pursuant to Eagle City Code, Section 8-3-5 (S)(2)(c)(2), personal wireless facilities located within residentially zoned areas are to be camouflaged or concealed, not readily identifiable as such, and are to be designed to be aesthetically compatible with existing and proposed uses on the site. The applicant is proposing to locate the personal wireless facility in proximity to other evergreen trees, however, due to the proposed height of the personal wireless facility does not appear to be compatible with the existing tree canopy of the existing evergreens. The proposed personal wireless facility should be reduced in height to be aesthetically compatible with the existing tree canopy located adjacent to the proposed site. The applicant should provide a revised elevation showing the proposed personal wireless facility reduced in height to be aesthetically compatible with the existing tree canopy. The revised elevation should be provided prior to the Design Review Board reviewing the design review application associated with the proposed personal wireless facility. • The applicant is proposing the personal wireless facility to be located at the site in perpetuity. Pursuant to Eagle City Code, Section 8-3-5(S)(9)(a), as a condition of approval of any required conditional use permit for personal wireless facilities, all abandoned or unused towers and associated facilities shall be required to be removed within sixty (60) days of cessation of use as a personal wireless facility unless a time extension is granted by the city. A copy of the relevant portions of a signed lease, which requires the applicant to remove the tower and associated facilities upon cessation of the use as a Personal Wireless Facility, shall be submitted prior to the issuance of a zoning certificate. In the event that the tower and associated facilities are not removed within the sixty (60) days, the tower and associated facilities may be removed by the city and the costs of removal assessed against the property. • The applicant provided an Enlarged Site Plan (sheet number: C-2), date stamped by the City on February 3, 2014, which shows the proposed fencing surrounding the site to be an eight foot (8') high cedar fence. Pursuant to Eagle City Code, Title 8, Chapter 2A, Section 7, cedar fencing is prohibited. The applicant should provide a revised Enlarged Site Plan showing the eight foot (8') high fence surrounding the site to be constructed of a material that is allowed pursuant to Eagle City Code. The revised Enlarged Site Plan should be reviewed and approved Page 11 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccf doc by the Design Review Board prior to issuance of Zoning Certificate for the construction of the Personal Wireless Facility. • Pursuant to Eagle City Code, Title 8, Chapter 3, Section 5(S), the applicant is required to provide additional application information from a qualified and licensed engineer documenting specific items in regard to the proposed personal wireless facility. The applicant has not provided the required information prior to approval of the proposed personal wireless facility due to the costs associated with the engineering reports. The required documentation for personal wireless facilities consists of the following: 1) the proposed facility will be in compliance with the FCC standards regarding radio frequency(RF)emissions and 2)the tower height and design (including a cross section and elevation); documents the height above grade for all potential mounting positions for collocated antennas and the minimum separation distances between antennas; describes the tower's capacity, including the number and type of antennas that it can accommodate; documents what steps the applicant will take to avoid interference with established public safety telecommunications; includes an engineer's stamp and registration number; and includes other information necessary to evaluate the request. If approved, the applicant should provide the documentation prior to the issuance of a Zoning Certificate for the construction of the personal wireless facility. • Pursuant to Eagle City Code, Title 8, Chapter 3, Section 5(S), the applicant is required to provide written approval of the site location (with specific reference to the height of the antenna structure and any lighting issues) from the federal aviation administration, the chief of the Idaho bureau of aeronautics, and the Boise airport commission and an aviation easement approved by the Boise airport commission. If approved, the written approvals of these other agencies should be provided prior to the issuance of a Zoning Certificate for the construction of the personal wireless facility. PUBLIC HEARING OF THE COMMISSION: A. A public hearing on the application was held before the Planning and Zoning Commission on March 17, 2014, at which time public testimony was taken and the public hearing was closed. The Eagle Planning and Zoning Commission requested additional information be provided by the applicant and remanded the application to staff. The Eagle Planning and Zoning Commission directed staff to re- notice the application upon receiving the requested information. The application was re-noticed and the conditional use permit application came before the Eagle Planning and Zoning Commission for their recommendation on May 19, 2014, at which time public testimony was taken and the public hearing was closed. The Commission made their recommendation at that time. B. Oral testimony in opposition to the application was presented to the Planning and Zoning Commission by 14 individuals. They were opposed to the proposed conditional use permit for the following reasons: • The applicant has not provided all of the required application information pursuant to Eagle City Code (i.e. detailed propagation charts, existing cell tower locations, other locations where a personal wireless facility may be located, etc.). • As proposed the personal wireless facility is not in conformance with Eagle City Code based on the structure is not aesthetically compatible with the surrounding area. • There are no overhead utilities located within the surrounding area. • The proposed fencing in not in context with the existing fencing located in proximity to the site. • Concerns with the use and maintenance of the proposed service road. • Based on the proposed height the proposed personal wireless facility will have a significant impact to the neighbors located in proximity to the site. Page 12 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccfdoc • The proposed fencing may be vandalized with graffiti. • There is new technology that exists and cell towers are becoming obsolete. • Most homes are now equipped with WIFI. • Individuals do not purchase homes located adjacent to a golf course to look at a cell tower. • The sound coming from the proposed air conditioning units associated with the equipment will impact the adjacent properties. • Personal wireless facilities are only compatible if scaled properly. • The value of the surrounding properties will be reduced due to the proposed location. • The personal wireless facility will obstruct the view of some property owners. • Although the proposed personal wireless facility is camouflaged as a pine tree it still looks like a cell tower. • The applicant has not addressed lighting requirements. • Other locations may be more compatible for locating a personal wireless facility. • The value of homes is already decreased and if the personal wireless facility is constructed it may cause those values to decrease more. • Noise from the air conditioners associated with the equipment will be a factor. • The personal wireless facility is not needed because the coverage in the area is fine. • The proposed personal wireless facility will be located in a view corridor. • The proposed personal wireless facility is located within the center of an existing neighborhood. • The applicant should take time to plan for some other sites that may be more acceptable. • Most individuals have existing state of the art communication systems within their homes and have not experienced dropped calls. C. Oral testimony in favor of the application was presented to the Planning and Zoning Commission by one (1) individual who indicated the community needs additional cellular coverage to allow for streaming of movies and quicker upload times. The person also indicated that a majority of individuals do not have landlines within their residences. D. Oral testimony neither in favor of nor in opposition to the application was provided by one (1) individual who indicated the communication infrastructure within the community needs to be updated. The person also indicated they have concerns with the communication infrastructure being overloaded in the event of an emergency. COMMISSION DELIBERATION: Upon closing the public hearing,the Commission discussed during deliberation that: • The proposed use is similar to having a commercial operation within a residential area. • The proposed personal wireless facility is both a benefit and a detriment to the community. The personal wireless facility will benefit the community through the improved cell service it will provide, however, it will be detrimental due to the proposed structure not being aesthetically compatible with the existing tree canopy in the area. • Personal wireless facilities should be constructed in areas that have not been developed. • The applicant should be required to match the height of the existing tree canopy. • Although the personal wireless facility is disguised as a pine tree it still looks like a cell tower. • The proposed personal wireless facility is not aesthetically compatible with the existing tree canopy due to the height of the structure. • As proposed the personal wireless facility is not in conformance with Eagle City Code because of the proposed height in relationship to the surrounding tree canopy. • The cooling equipment can be running any hour of the day, for any duration, during all four(4) seasons causing noise that will be disruptive to the surrounding neighbors. Page 13 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccfdoc COMMISSION DECISION: The Commission voted 4-0 (Smith absent) to recommend denial of CU-01-14 for a conditional use permit for a Personal Wireless Facility (height-over 35-feet) for Skyway Towers, LLC, as provided within their findings of fact and conclusions of law document, dated June 2, 2014. PUBLIC HEARING OF THE COUNCIL: A. A public hearing on the application was held before the City Council on July 8, 2014, at which time testimony was taken and the public hearing was closed. B. Oral testimony in opposition to the application was presented to the City Council by one(1) individual who represented Protect Eagle Neighborhoods, Inc. ("PEN") (approximately 50-individuals)and by 16 additional individuals. They were opposed to the conditional use permit for the following reasons: • The proposed height of the personal wireless facility is not compatible with the surrounding tree canopy. • A co-location study was not provided. • Propagation study is not in compliance with the ordinance. • Due to the proposed height and location of the personal wireless facility it may cause a decrease in market value of the homes located in proximity to the site. • The use and maintenance of the personal wireless facility, noise from the air conditioning units cooling the equipment, and the testing schedule associated with the facility may impact the adjacent neighbors. • Cell service is fine in the area and new infrastructure is not needed at this time. • Companies are currently working on new technology which may cause towers to become obsolete. • Animals in the area may leave due to the noise created by the air conditioning units cooling the equipment. • The personal wireless facility is proposed to be used for pass through service and not for local service. • The noise created by the air conditioning units may cause individuals utilizing the golf course to golf elsewhere and the city may experience lost revenue. • The use and location of the service road providing access to the personal wireless facility. • Excessive noise from the emergency generators. • The proposed security fencing is not compatible with the existing fencing located in proximity to the site. • The storage of diesel fuel for the emergency generators. • The community needs to master plan for personal wireless facility locations. • The ordinance associated with personal wireless facilities needs to be reviewed and possibly amended. C. Oral testimony in favor of the application was presented to City Council by five (5) individuals (not including the applicant/representative). They were in favor of the conditional use permit for the following reasons: • Cellular service will be improved once carriers locate equipment on the personal wireless facility. • The proposed personal wireless facility is needed due to the number of cellular service dropped calls. • Everyone wants improved service but no one wants the facilities in their neighborhood. • There is a need for improved coverage in the event of an emergency. Page 14 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccf doc COUNCIL DECISION: On July 8, 2014, the Council voted 4 to 0 to deny CU-01-14 for a conditional use permit for a Personal Wireless Facility(height-over 35-feet)for Skyway Towers, LLC. On July 22, 2014, the City Council reviewed the findings of fact and conclusions of law regarding the City Council's July 8, 2014, decision. The City Council provided staff additional direction and remanded the findings of fact and conclusions of law to staff for revisions and directed staff to bring the amended findings of fact to their next scheduled meeting. On August 26, 2014, the City Council continued the findings of fact and conclusions of law to the September 9, 2014, meeting. On September 9, 2014, prior to the City Council approving the findings of fact and conclusions of law the applicant requested mediation pursuant to I.C. 67-6510. The Council discussed the mediation option and pursuant to I.C. 67-6510, directed staff and Council representatives to mediate with the applicant and other affected parties and bring potential changes back for Council consideration at a future date. Mediation sessions were conducted on October 3, 2014, and January 9, 2015. Upon completion of the mediation sessions an agreement could not be reached among the parties to resolve the proposed facility site. All parties did agree to supplement the record to include a study regarding propagation and coverage within the proposed service area by Trott Communications("Trott Study"). POST MEDIATION PUBLIC HEARING OF THE COUNCIL: A. Following mediation a public hearing was held before the City Council on January 27, 2015. During the public hearing the applicant submitted five (5) options for construction of a personal wireless facility tower(s) and public testimony was taken. At the conclusion of the public hearing the City Council closed the oral portion of the public hearing and allowed additional written comment(limited to the Trott Study) to be submitted to the City on or before February 5, 2015, and continued the hearing to February 10, 2015. On February 10, 2015, the Council considered the additional written comment and the public hearing was closed. The Council made their decision at that time. B. During the January 27, 2015, public hearing oral testimony in opposition to this proposal was presented to the City Council by seven (7) individuals (one [1] of which represented Protect Eagle Neighborhoods, Inc. "PEN")who expressed the following concerns: • The proposed location for the personal wireless facility in not appropriate. • The proposed location will not provide the desired coverage for cell phone users and additional towers will be required. • Expressed the same concerns as provided in the July 8, 2014,public hearing. • Optional sites have not been proposed. • The applicant has not complied with the requirements of Eagle City Code. • Questions whether or not the ground within the proposed site will support the weight of the personal wireless facility. • The number of towers that will be required. • Health issues need to be addressed. C. Oral testimony in favor of this proposal was presented to the City Council by three(3) individuals(not including the applicants/representative). They were in favor of the conditional use permit for the following reasons: • Cellular phone coverage needs to be improved. • A booster is required to receive good cellular coverage due to the lack of sufficient coverage. • The best sites to locate a new personal wireless facility is Eagle Hills Elementary or the subject site. Page 15 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccf.doc • The options provided by the applicant are the best options available. D. Written testimony regarding the Trott Study in association with this proposal was presented to the City Council by two (2) individuals. The correspondence (attached to a memo to the Mayor and City Council dated February 6, 2015) is incorporated herein by reference. POST MEDIATION COUNCIL DECISION: The Council voted 3 to 1 (Ridgeway nay)to approve CU-01-14 for a conditional use permit for a Personal Wireless Facility (height-over 35-feet) for Skyway Towers, LLC, with the following site specific conditions of approval: 1. The applicant shall be allowed to construct a mono-pine personal wireless facility 115-feet in height with the pole support structure not to exceed 110-feet in height. 2. The applicant shall include a 30-foot high spruce in proximity to the 2,500-square foot leased area associated with the personal wireless facility. 3. In the event the applicant desires to increase the height of the personal wireless facility the applicant shall submit a conditional use permit application to be reviewed and approved by the City Council prior to a zoning permit being issued for construction of the modification. 4. The applicant shall submit a design review application including, but not limited to, elevations of the proposed personal wireless facility, ancillary building, screening, and site landscaping. The design review application shall be reviewed and approved by the Design Review Board prior to the issuance of a building permit for this site. CONCLUSIONS OF LAW: 1. A Neighborhood Meeting was held at Eagle City Hall at 6:00 PM, Monday, January 13, 2014, in compliance with the application submittal requirement of Eagle City Code. The application for this item was received by the City of Eagle on January 30, 2014. 2. Notice of Public Hearing on the application for the Eagle Planning and Zoning Commission was published in accordance with the requirements of Title 67, Chapter 65, Idaho Code and the Eagle City Code on February 24, 2014. Notice of this public hearing was mailed to property owners within 1000- feet of the leased area in accordance with the requirements of Title 67, Chapter 65, Idaho Code and Eagle City Code on February 20, 2014. The site was posted in accordance with the Eagle City Code on March 7, 2014. Requests for agencies' reviews were transmitted on February 7, 2014, in accordance with the requirements of the Eagle City Code. Due to the application being remanded the application was re-noticed. Notice of Public Hearing on the application for the Eagle Planning and Zoning Commission was published in accordance with the requirements of Title 67, Chapter 65, Idaho Code and the Eagle City Code on April 28, 2014. Notice of this public hearing was mailed to property owners within 1000-feet of the leased area in accordance with the requirements of Title 67, Chapter 65, Idaho Code and Eagle City Code on April 25, 2014. The site was posted in accordance with the Eagle City Code on May 9, 2014. Notice of Public Hearing on the application for the Eagle City Council was published in accordance with the requirements of Title 67, Chapter 65, Idaho Code and the Eagle City Code on June 23, 2014. Notice of this public hearing was mailed to property owners within 1,000-feet of the leased area in accordance with the requirements of Title 67, Chapter 65, Idaho Code and Eagle City Code on June 20, 2014. The site was posted in accordance with the Eagle City Code on June 25, 2014. Page 16 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccf doc Post Mediation: Notice of Public Hearing on the application for the Eagle City Council was published in accordance with the requirements of Title 67, Chapter 65, Idaho Code and the Eagle City Code on January 12, 2015. A courtesy notice of the public hearing was mailed to property owners within 1000-feet of the leased area on January 15, 2015. The site was posted in accordance with the Eagle City Code on January 16, 2015. 3. The Council reviewed the particular facts and circumstances of the proposed conditional use (CU-01-14) in terms of Eagle City Code Section 8-7-3-2, "General Standards For Conditional Uses"and has concluded that the proposed conditional use: A. Will, in fact, constitute a conditional use as established in Section 8-2-3 of this title (Eagle City Code Title 8) since a personal wireless facility (height-over 35-feet) may be permitted in the R-4 (Residential) zoning district if a conditional use permit is approved by the City Council; B. Will be harmonious with and in accordance with the general objectives or with any specific objective of the Comprehensive Plan and/or this title (Eagle City Code Title 8), since there are no inconsistencies with the Comprehensive Plan and since a personal wireless facility height over 35-feet is permitted with the approval of a conditional use within the R-4 (Residential) zoning district and the Comprehensive Plan designates this site as Public/Semi-Public; C. Will be designed, constructed, operated and maintained to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and that such use will not change the essential character of the same area. The Council believes the personal wireless facility (Height-Over 35 feet) will help reduce the coverage gap and is the least intrusive means to provide telecommunication coverage since the structure will be camouflaged as a pine tree (mono-pine), located within an existing golf course. Additionally, a 30-foot high pine tree will be required to be planted within in proximity to the site to provide a tree grove appearance not to be readily identifiable as a personal wireless facility, additional landscaping is required, and the design of the proposed personal wireless facility (height-over 35-feet) and the associated structures, fencing, and landscaping will be required to be reviewed and approved by the Design Review Board; D. Will not be hazardous or disturbing to existing or future neighborhood uses since pursuant to an independent Radio Frequency (RF) Site Compliance Report (provided by the applicant) the personal wireless facility (height-over 35-feet) is in conformance with Federal Communication Commission (FCC) Rules and Regulations for RF emissions. The equipment associated with the personal wireless facility (Height over 35-feet) will not be disturbing to existing and future neighborhood uses since the facility will be located on the border of hole#2 of the Eagle Hills Golf Course and the noise generated by the cooling equipment will be comparable to the noise generated by an air conditioning unit for a typical residence; E. Will be served adequately by essential public facilities such as highways, streets, police and fire protection, drainage structures, refuse disposal, water and sewer and schools; or that the persons or agencies responsible for the establishment of the proposed use shall be able to provide adequately any such services, as noted in the documentation provided from said agencies and as required as a part of the conditions of approval. Also, the proposed use is to reduce the existing gap in coverage for telecommunication devices; F. Will not create excessive additional requirements at public cost for public facilities and services and will not be detrimental to the economic welfare of the community since the site will have minimal traffic and does not require sewer and water to be extended to the site; G. Will not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons, property or the general welfare by reason of excessive production of Page 17 of 18 K:\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccfdoc traffic, noise, smoke, fumes, glare or odors since the personal wireless facility (height over 35-feet) will be provided with landscape buffers located around the fenced leased area, the traffic generated from service vehicles should be approximately one (1) trip per month, and the noise generated by the cooling equipment will be comparable to the noise generated by an air conditioning unit for a typical residence; H. Will have vehicular approaches to the property which are designed as not to create an interference with traffic on surrounding public thoroughfares since ACHD is only allowing one (1) access to the subject site from an existing public roadway; and I. Will not result in the destruction, loss or damage of a natural, scenic or historic feature of major importance, since none are apparent on this site. 4. Eagle City Code Section 8-7-3-5: C (2) (c) states that the Council shall specify, "The actions, if any, that the applicant may take to obtain a permit". DATED this 10th day of March, 2015. CITY COUNCIL OF THE CITY OF EAGLE Ada County, Idaho OFEq ames D. Reynolds, ayor ?`�� r.•••••••C, i C.) • .�•� , * ATTEST: * • SEAL • ... • !_,r%tIg/11 ••••,,,,,OF�,..•`• Sharon ' . Bergmann, Eagle City Cler Regulatory Taking Notice: Applicant has the right, pursuant to Section 67-8003, Idaho Code, to request a regulatory taking analysis. Reconsideration Notice: Applicant has the right,pursuant to Section 67-6535, Idaho Code,to request a reconsideration within fourteen(14)days of the final written decision. Page 18 of 18 K\Planning Dept\Eagle Applications\CU\2014\CU-01-14 Skyway Towers post mediation ccf doc