MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,
WHICH TOOK PLACE ON TUESDAY, MAY 16, 2006,
AT 6:30 P.M., IN COUNCIL CHAMBERS, CITY HALL,
1. ROLL CALL.
PRESENT: Board Members - Sutton, Lichtenwald, Higgins, Holthof and Green
ABSENT: Board Members - None
OTHERS PRESENT: Daryl Poprave, City Planner; Cheri Standfest, Community Development Specialist, Jim Branson, City
Attorney and 10 others.
2. APPROVAL OF MINUTES
It was moved by Higgins supported by Sutton to approve the minutes of the April 18, 2006 meeting as corrected. Motion was unanimously approved.
Next, the Chairman explained the public hearing procedures that the ZBA would employ to reach a decision on the following variances:
3. PUBLIC HEARING
No. 06-04 – Randy Sherman on behalf of the Herbert D. Doan Midland County History Center for an area/dimension variance to allow an additional 32 sq. ft. sign at 3417 West Main Street.
The City Planner began by showing an aerial view of the subject property. This is the Herbert D. Doan Historic Center. The property is located southwest of W. Main Street and east of Cook Road. The property is zoned RA-1 Residential and is surrounded by similar residential districts. These include the Village West Condominiums and part of Northwood University. There is also some agricultural and mixed residential in the area. Most of the houses off of Cook Road have been taken down since the aerial photo was taken so that is open space at the present time.
If this variance is approved, the petitioner will construct a 31.5 sq. ft. sign as shown in picture “A” of the Board packet. The Board granted a variance on November 16, 2004 to allow a 31.5 sq. ft. ground sign to be constructed within the required five foot setback. Behind this site is Heritage Park, which includes the Bradley House, and the H. H. Dow Museum. This sign will advertise that venue from West Main Street. Section 8.06(e) of the Zoning Ordinance states that “each non-residential use in a residential district shall be permitted one wall or ground sign, provided that the type, height, area, and number of signs comply with Table 8.2”. Staff further explained that this use was classified as a quasi-public use and as such was allotted more signage than other non-residential uses in a residential zoning district. This request still exceeds that amount (32 square feet total).
Holthof asked if anyone had considered rezoning this property to Community. This would allow additional signage. Mr. Poprave stated he did not know whether this had been considered or not.
Randy Sherman, 1901 Trailwood Circle, represented the petitioner. When you approach the property on Main Street, you are probably a good 6-8 feet below the grade of the building. When they considered putting a sign under the overhang, they thought this would be more of a hazard for vehicular traffic as it would be so high. The other option was back on the building itself. If the sign is located back on the building, it is another 30 feet into the site. The canopy would prevent the sign from being seen from West Main Street.
Higgins asked the petitioner to review the five criteria, based on why the board should allow them to have this sign. This should be from the standpoint that the sign is not a foregone conclusion. The petitioner stated that, relative to item A, if they locate the sign anywhere else on the building, you will not see it from West Main Street. They need the sign to advertise the H. H. Dow Museum and Heritage Park behind the museum. If the sign were located anywhere else on the property, it would not be seen.
Sutton asked if the existing street sign would block the view of the proposed sign. The petitioner stated that the existing sign is perpendicular to the road and the proposed sign is parallel to the road. He does not feel this would be a problem.
The petitioner stated that the only way to identify Heritage Park is by this sign. The vegetation and the road lay-out prevent the park from being identified to people on West Main Street as they drive by. Any other place would not be successful. The location on the site is inside the property and would be less obvious to surrounding property owners than if it was out front further. They have cut down the size of the requested sign several times. They feel it is as small as it can be to get all the information on the sign and still be visible by cars going by 40 mph on Main Street. The unique circumstances peculiar to the property are the slope, and the elevation of the site. If you mount the sign up high, you literally would not see it. If it were located on the building, it would be too far back to be seen.
Green asked about the Midland Center for the Arts being on the existing sign. He is looking at what could be done with the existing sign to make it more accommodating. Gary Skory, 115 Ripley Street, Midland representing the Midland Center for the Arts stated at t the time the site was designed, an additional sign was approved. Things have changed with the adoption of the new zoning ordinance language.
Sutton asked if they could use the existing sign and use it to put the verbage on it for Heritage Park. They have a dilemma about how to get people into Heritage Park from both sides of the park. They feel it is important to have the Midland Center for the Arts logo on their sign as they are an extension of Midland Center for the Arts.
Holthof stated they already have the signage they are allowed. It seems Residential zoning is not appropriate for their use of the property. He would like to know why they are not pursuing rezoning of the property that would allow additional signage. The petitioner stated that, since they are only leasing the land, this might be more difficult than normal. That option has not been considered. If they got the property rezoned, they could have the additional signage they want. Community zoning would allow multiple signs and additional square footage of signage.
The Chairman asked if anyone present wished to speak in favor of or against the request. No one spoke either in favor of or in opposition to this request.
Hearing none, the Chairman closed the public hearing and directed the Board to enter into fact finding.
Higgins stated he is a member of the Historical Society and a volunteer worker for the Historical Society. Green and Sutton also stated they are members of the Historical Society.
Findings of Fact:
1. The property
is zoned RA-1.
2. There was one letter in support from the Midland Center for the Arts.
3. The property is approximately 3-1/2 acres in size, an irregularly shaped lot, bounded by West Main Street and Cook Road.
4. The property is owned by Herbert & Grace A. Dow Foundation.
5. The land across W. Main Street is undeveloped floodplain land and owned by the Dow Foundation.
6. The proposed sign location will not present a traffic hazard for traffic or pedestrians.
7. The monument sign area is proposed to be approximately 31.5 sq. ft. and located between the front columns of the canopy as depicted in Picture “A.
8. The speed limit on W. Main Street is 40 mph.
9. The proposed sign, as requested by the petitioner, is needed to identify the location of Heritage Park entrance.
10. The frontage on W. Main Street exceeds 600 feet.
11. The steep grade in front of the building is due to strict floodplain requirements.
It is moved by Higgins and supported by Green to approve Petition No. 06-04 based on the findings of fact.
Higgins stated they want to bring people’s attention to something behind the existing property. They would need some directional signs to identify the park to the rear. It does do justice to the applicant because the applicant wants to identify that park. He thinks this is what is needed to accomplish their objective. The uniqueness of the property is that this property stands up higher off the road. This property could be rezoned for community. Then it could have two signs, but they would have to be more than 200 feet apart. The problem is created by the fact that Residential zoning districts only allow one sign. This is the most logical place to put the sign. He would say they could meet the five criteria.
Holthof stated Higgins made some good arguments. He does not believe the petitioner has pursued the rezoning option. However, the petitioner would probably still be here because the signs would not be 200 feet apart. The flood plain across the street makes development difficult down the road.
Green stated that, when the sign was initially designed, it needed to identify the Historical Museum as a part of the Center for the Arts. This is one option to solve their problem, aside from the rezoning process.
Sutton agrees with everything that has been said. However, if this was a different client, we would be asking them to go the rezoning route so that any future development of the land would have to conform to the ordinance. She would prefer the route taken would be the rezoning. On the other hand, the land around it is residential and the land across the street will probably stay that way. She does not think this will be the solution to what they are trying to accomplish.
Lichtenwald stated he was having some difficulty with the criteria, but now he can see how all five criteria are met.
Voting in support of the motion:
The motion to approve Petition 06-04 was approved 4-1.
No. 06-05 – Verizon Wireless for an area/dimension variances to permit a 140 foot tall monopole cellular tower located north of 1100 Joe Mann Blvd. on Elisenal Drive.
Mr. Poprave showed an aerial photograph of the site. It is located east of Elisenal Drive and north of Joe Mann Blvd. The parcel is on leased land. They are seeking a conditional use permit to build a tower. Jacobs Drain runs through this area, just north of Home Depot. Most of the surrounding property is vacant land and the Midland Evangelical Free Church is located to the north and west of this site. According to the zoning ordinance, the tower must be as far away as the nearest residential property as the height of the tower. If approved, this variance will permit the petitioner to construct a 140 foot monopole tower as shown in attachment 1. The petitioner had a building permit issued on October 25, 2004, but it is very clearly stated on the permit that it expires in 180 days if not enacted upon in that time. Under the old Zoning Ordinance, cell towers did not warrant site plan review and approval by City Council. Prior to November, 2004, the city did not do Administrative Site Plans. Section 25.4(e) of the zoning ordinance states that approval of a site plan will be two years. There was no approval by City Council so it was not an approved site plan. The new zoning ordinance has set a limit of 120 feet for towers. This 140 foot tower exceeds the limit and that is why they are here tonight.
Sutton stated she heard at the Planning Commission meeting that this tower would not have a flag pole on the tower so it would be higher yet. There is not a need to camouflage this tower as it is in a commercial district. This is not in the flight path of the runway at Barstow Airport.
Rob LaBelle, on behalf of Verizon Wireless. He is here to ask for this variance for two very practical reasons. The first one is that it provides better coverage. The demands of their customers in this area are not currently being met. Secondly, it is going to encourage co-location. The reason they are here in the first place is because they have received complaints about dropped calls and poor coverage in this area. To meet those demands, they are trying to put this tower in the location you see on the map. Currently, there is a lot of area that has no coverage at all and a large area of poor coverage is the reason why they need it as high as they are requesting. If they get up to 140 feet, they can cover a larger area. Most towers are somewhere between 165 and 190 feet tall. The higher the tower, the greater the coverage area. Getting below 120 feet substantially reduces the coverage. This is important when you want to have co-location entities on the tower as well. Getting below 120 feet is not going to get the coverage needed to satisfy their customers. In this particular area, this is what is necessary to have co-locators locate on your tower. The entire purpose of the ordinance is to reduce the number of towers in these areas. That is not being accomplished with the existing ordinance. Everyone wants to be 120 feet high so each of them will put up their own tower. They would anticipate having at least two co-locators on their tower.
Mike Avery, RF Engineer for Verizon Wireless. The last tower they built was downtown and he thinks it was 160 feet tall. They have agreements with each of the other providers to co-locate if they can. Any provider would like to have co-location rather than putting up their own tower. It is much cheaper.
Holthof asked if they had approached the other tower carriers to see if they could co-locate on their towers. The petitioner stated these towers are structurally inadequate for them to co-locate on. They have talked with both of these tower owners and have been told that it is not a good idea to expand these existing towers.
The Chairman asked if there was anyone present who wished to speak in favor or opposition to this request. No one spoke either in favor of or in opposition to this request.
Hearing none, the Chairman closed the public hearing.
Findings of Fact:
1. The property is zoned RC – Regional Commercial.
2. The petitioner was issued a building permit for a 140 ft. high tower on October 25, 2004, which expired April 25, 2005.
3. The petitioner provided a simulation map depicting coverage with a 140 ft. high monopole tower.
4. The petitioner stated that the 140 ft. high tower rather than the 120 ft. high tower was needed for future co-location.
5. Other existing towers in the mall area are not greater than 120 ft. in height, and do permit co-location. The petitioner has pointed out that this is not practical.
6. The tower would not be in the flight pattern of Barstow Airport according to the MBS and FAA documentation provided in the Board packet.
7. The petitioner stated that 120 foot height is the minimum needed to make it worthwhile to build a tower.
8. The petitioner stated that two to three additional antennas could be located on a 140 ft. tall tower.
9. Two additional co-location entities could be located on this tower at 130 and 120 feet.
10. Typical towers by major cellular carriers are 165 to 195 feet tall.
It is moved by Higgins and supported by Green to approve Petition No. 06-05 based on the findings of fact.
Higgins and Holthof both feel that it would be advantageous to allow the additional height and have other cell providers co-locate on this tower. This would prevent additional towers from being built. However, if we allow this carrier to have a 140 foot tower, the next individual will also want a 140 foot tower. If we allow this higher tower here in the commercial district, rather than in a residential district, this would be an appropriate area and to require co-location on this tower.
The petitioner has already bought a 140-foot tower. They are not going to go up to 149 feet.
Holthof stated a 140-foot tower does not promote co-location. This would be a reason for him to vote against it.
Holthof moved and Higgins seconded to amend the motion to authorize up to a 149-foot tower to encourage co-location.
Voting support of the motion:
The amendment to the original motion passes. Holthof stated strict compliance would unreasonably prevent them from using the property. He feels the higher tower is needed to promote co-location. He feels this will do justice to the property owners in the City of Midland. It is the minimum required to provide relief to the applicant and their customers. The variance is due to unique circumstances, due to the cellular usage and the higher height needed to cover a greater area.
Green stated that they already have a 140 foot tower. The extra nine feet will hopefully encourage other companies to co-locate on this tower. The 149 feet is what is allowed by the FAA that will not be a problem in the flight path. At 149 feet, they have at least provided the opportunity for co-location.
Lichtenwald feels all the criteria have been met. However, he voted no on the amendment because he does not think this is going to accomplish what Mr. Holthof wants to accomplish.
Voting in support of the motion:
The motion to approve Petition 06-05 was approved 4-1.
4. PUBLIC COMMENTS (not related to items on the agenda)
5. OLD BUSINESS
6. NEW BUSINESS
June meeting – We have received two variance requests already for this meeting.
July organization meeting.
Unified Zoning Act – ZBA notification changes (becomes effective 7/1/06)
Higgins moved that the Board issue an interpretation that in Section 3.16(B)3(a)iv of the Zoning Ordinance where it permits higher cellular towers (greater than 120 ft. in height) if it is necessary to promote co-location, that the Planning Commission and City Council be given the authority to grant cellular tower height waivers during the Conditional Use Permit process. The motion was seconded by Holthof. His thinking behind this is that these decisions should be made by the elected bodies rather than the Zoning Board of Appeals. The ordinance does not say who specifically makes the decision. This would make the decision incumbent upon the Planning Commission and City Council.
Voting in support of the motion:
Motion passed 5-0.
7. DECISION SHEET SIGNATURES
a. 06-03 approval of findings of fact.
The Chairman adjourned the meeting at