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HomeMy WebLinkAbout12-16-2009 Board of AdjustmentAGENDA IOWA CITY BOARD OF ADJUSTMENT MEETING WEDNESDAY, DECEMBER 16, 2009 - 5:00 PM CITY HALL - EMMA J. HARVAT HALL A. Call to Order r:JE:rnr9-r C. Consider the October 14 Board Minutes D. Other Discussion of special exception criteria and the Board of Adjustment's scope of review for Communications Transmission Facilities. E. Board of Adjustment Information F. Adjourn NEXT BOARD OF ADJUSTMENT MEETING: January 13, 2010 CITY OF IOWA CITY MEMORANDUM Date: December 4, 2009 To: Board of Adjustment CC: Sarah Walz, Planner From: Sara Greenwood Hektoen, Assistant City Attorney Re: Board of Adjustment's Consideration of Provisional Use and Special Exception Applications for Communication Transmission Facilities To help you, the Board of Adjustment, better understand your role and its limitations when considering applications for special exceptions to permit the construction of cell phone towers within the corporate limits of Iowa City, I am providing this brief memo and attached CRS Report for Congress. As you will see, the attached report is a very useful overview of the 1996 Telecommunications Act and how it affects state and local regulation of the citing of communication transmission facilities. Below I have attempted to summarize your role in effectuating this federal law (as well as the state and local laws). Iowa State Zoning Code Chapter 414 Iowa Code Section 414.1 gives a City Council the authority to enact zoning code regulations "for the purpose of promoting the health, safety, morals or the general welfare of the community..." Iowa Code Section 414.7 gives a City Council the authority to create a Board of Adjustment to grant aggrieved property owners relief from those zoning code regulations "in appropriate cases and subject to appropriate conditions and safeguards." The state code also requires that if the Board grants a special exception, it must be "in harmony with (the zoning regulations') general purpose and intent and in accordance with general or specific rules therein contained." Iowa Code Section 414.7. Thus the state zoning code creates a system whereby the City Council acts as the legislative body in establishing the zoning code regulations, and the Board of Adjustments acts as the (quasi) judicial body in determining whether a particular property owner should be granted permission to deviate from certain zoning code regulations. The Board of Adjustment does not establish the criteria, but rather decides whether the criteria have been met in a particular case. Iowa City Zoning Code regarding Telecommunications Towers The Iowa City Zoning Code does not permit by right communication transmission facilities (cell towers) in any zone. Cell towers are only allowed by special exception, which is reviewed by the Board of Adjustment. The City Council has adopted general and specific criteria the BOA must consider when making its decision regarding whether to allow the use by special exception. These criteria are set forth in the zoning code, which are attached hereto for your information and reference. The Board does not have the authority to modify these criteria or add additional criteria. If the application meets these criteria, the Board.must approve the application. Often during the public hearing on such cell tower applications, the Board will hear conflicting information from various parties who have differing interests at stake in the application. You must carefully weigh this evidence in light of the criteria established by City Council, and determine whether there is substantial evidence to support the decision the Board makes (be it to approve the application or deny it). A provision in the 1996 Telecommunications Act requires that decisions to deny a request to construct a cell tower must be "in writing and supported by substantial evidence contained in a written record." See 47 U.S.C. § December 4, 2009 Page 2 332(c)(7)(B)(iii) (1996). "Evidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion." Perkins v. Bd. of Supervisors of Madison Co., 636 N.W.2d 58 (Iowa 2001). The Iowa Supreme Court has held that, in the context of a zoning decision, a Board of Adjustment acts illegally "if the board has not acted in accordance with a statute; if its decision was not supported by substantial evidence; or if its actions were unreasonable, arbitrary, or capricious." Perkins, 636 N.W.2d at 64. The Court's ruling in U.S. Cellular Corp. v. BOA of City of Des Moines, 589 N.W. 2d 712 (Iowa 1999), serves as a good example. In this case, the Iowa Supreme Court declared that the Des Moines Board of Adjustment acted in bad faith and/or with malice where the Board denied an application for a cell tower based on its finding that the site was too small, there was "considerable" public opposition to the application, and "based on the failure of the proposed structure to comply with an ordinance then being drafted." U.S. Cellular Corp., 589 N.W. 2d at 718. The Court found the 7 public response cards (3 in favor, 3 against, and 1 indifferent) received by the Board did not amount to "considerable" public opposition. The Court also found nothing on the record to substantiate a finding that the site was too small. Further, the Court ruled that the Board should have considered the application based only on the approved criteria set forth in the zoning code on the date of its decision, not on proposed criteria. Conclusion The Council, Iowa legislature and U.S. Congress will continue to grapple with the standards that should be applied when the Board of Adjustment makes a ruling on a cell tower special exception request. It is the Board's role to closely listen to the evidence presented regarding such special exception applications, apply the evidence to the criteria, and make a decision based on substantial evidence. When articulating the findings of fact, it is important to thoroughly state the evidence upon which the Board makes its decision in order to avoid (or at least reduce the risk) of legal challenges to your rulings. Criteria for Cell Communication Transmission Facilities Amended by City Council in December 2009 4. Communication Transmission Facilities in Residential Zones and in the ID-RS and ID-RM Zones a. Communications antennae are permitted in all Residential Zones and in the ID-RS and ID-RM Zones, provided the following conditions are met: (1) The antenna is mounted on an existing communications tower, on the roof of a principal building that contains a nonresidential use or on the roof of a building that is accessory to a nonresidential use, or on another tall structure that is permitted in the zone. Examples include church and school buildings, water towers and clock towers. A maximum of two antennae is permitted per building or structure. (2) The height of the antenna shall not exceed the height of the existing structure or building to which it is attached by more than 20 feet. If it exceeds this limit, a special exception is required to ensure that the antennae and any associated structure is designed to blend into its surroundings, or be camouflaged so as not to be obtrusive or detract from neighboring properties. (3) Strobe lighting is prohibited in Residential Zones. Therefore, any antenna that requires such illumination is prohibited. (4) Any equipment associated with an antenna must be located within the exterior walls of the building to which the antenna is attached. No separate equipment shed is permitted, except if the antenna is attached to a tall structure that is not a building. In such a case, a separate equipment shed is only allowed by special exception if it can be demonstrated that the shed can be adequately screened or designed in a manner that blends in with the residential character or future residential character of the surrounding area. b. Communications towers are allowed by special exception in the ID-RS and ID-RM Zones and must comply with the following approval criteria: (1) The proposed tower serves an area that cannot be served by an existing tower or industrial property or by locating antennae on existing structures in the area. The applicant must document attempts to utilize existing structures, towers, and commercial and industrial properties within one-half mile of the proposed tower. Such documentation must include maps illustrating the location of existing towers and potential alternative sites for antenna and towers that have been explored by the applicant and the applicant must state the reasons that these locations were not feasible. (2) The proposed tower will be designed and constructed in a manner that will camouflage the structure and reduce its visual impact on the surrounding area. Examples of camouflage design include monopoles, which do not have guy wires or support trusses and that are painted to blend in with the sky or surroundings, towers camouflaged as flag poles, monuments, steeples, or the integration of rooftop towers onto existing buildings, water towers, etc. Rooftop towers must use materials similar to or that blend in with the structure to which it is attached. Other camouflaged tower Ordinance No. Page 2 structures must be of similar height and appearance as other similar structures allowed in the zone, e.g. towers camouflaged as light poles or utility poles must be of similar height and appearance as other such poles. The applicant must include an illustration of how the tower would appear in the proposed location. (3) The proposed tower will be no taller than is necessary to provide the service intended. Evidence presented should include coverage maps illustrating current gaps in coverage and changes to coverage with the proposed tower. Communications towers are exempt from the maximum height standards of the base zone, but under no circumstance may the tower be taller than 120 feet from grade. If a communications tower is camouflaged to appear similar to another common structure allowed in the zone, it must comply with the same height standards that would apply to the type of structure that it emulates. For example, if the tower is camouflaged as a light pole, flag pole, or utility pole it must not exceed the height limitation for such structures as specified in the base zone. If no height standard exists in the code for such a structure, it must be designed to be of similar height and appearance to other similar or typical structures. If the tower is camouflaged as a chimney, steeple, or other similar rooftop structure, the Board may exempt it from the base zone height standards if it is designed as if it were an integral part of the building and is not out of scale or proportion to other similar rooftop structures. (4) The proposed tower will be set back from the property line at least a distance equal to the height of the tower. (5) Any equipment associated with the tower facility will be enclosed in an equipment shed, cabinet, or building, which must be adequately screened from view of the public right-of-way and adjacent properties and designed in a manner that will be compatible and blend in with future residential development. (6) The proposed tower will not utilize a back-up generator as a principal power source. Back-up generators may only be used in the event of a power outage. The Board of Adjustment may require that the electric distribution line necessary to furnish electric service to the tower be made underground from existing systems, however, this requirement would not apply to electrical transformers, meter pedestal, switch gear and other appurtenances impractical to bury. (7) Strobe lighting is prohibited. Therefore, any tower that requires such illumination is prohibited in these zones. (8) The proposed tower must be designed and constructed to accommodate at least one additional user, unless in doing so the tower will exceed the 120 foot height limitation or if the Board of Adjustment determines that allowing the additional height needed to accommodate another user will detract from the area to the extent that it will prevent future development as envisioned in the Comprehensive Plan. The applicant shall provide a certification by a professional engineer licensed in this state that the proposed tower will be designed to permit a second antenna system of comparable size to be added to the tower above or immediately below the original antenna system. Ordinance No. Page 3 (9) If use of the tower is discontinued, the tower and any associated equipment must be removed by the owner of the tower, the operator, or the owner of the property within one year of discontinuance of use and the land graded and re -planted to prevent erosion. The applicant shall present a signed lease agreement, a recorded declaration of covenants, or other satisfactory evidence acknowledging this obligation. 5. Communication Transmission Facilities in Commercial Zones and the ID-C Zone; Privately -Owned Communication Transmission Facilities in Public Zones. a. Communications antennae are permitted in all Commercial Zones, the ID-C Zone, and in Public Zones provided the following conditions are met: (1) The antenna must be mounted on another structure allowed in the zone, such as a rooftop, light pole, or utility pole. (2) In the CN-1 and CO-1 Zones and in any ID-C Zone that is intended for a future CN-1 Zone, strobe lighting is prohibited. Therefore, any antenna that requires such illumination is prohibited in these zones. (3) In Public Zones and in the CC-2, CH-1, CI-1, CB-2, CB-5, and CB-10 Zones and in any ID-C Zone not intended for a future CN-1 Zone, antennae may not be illuminated by strobe lights unless required by federal regulations. If alternatives are allowed under federal guidelines, strobe lights may not be used. (4) Any equipment associated with an antenna must be located within the exterior walls of the building to which the antenna is attached or screened from view of the public right-of-way and any adjacent property to at least to the S3 standard (See Article 14-5F, Screening and Buffering Standards). If the equipment is located on the roof it must be set back and screened so that it is not within public view or appears to be part of the building. b. Communications towers are allowed by special exception in Public Zones, the ID- C, CO-1, CN-1, CH-1, CI-1, CC-2, CB-2, CB-5, and CB-10 Zones and must comply with the following approval criteria: (1) If the proposed tower will be located in an ID-C Zone that is intended for a future Neighborhood Commercial Zone according to the Comprehensive Plan, as amended, then it must comply with any specific standards listed below for CN-1 Zones. (2) The proposed tower serves an area that cannot be served by an existing tower or industrial property or by locating antennae on existing structures in the area. The applicant must document attempts to utilize existing structures, towers, and industrial properties within one-half mile of the proposed tower. Such documentation must include maps illustrating the location of existing towers and potential alternative sites for antenna and towers that have been explored by the applicant and the applicant must state the reasons that these locations were not feasible. (3) The proposed tower will be constructed in a manner that will camouflage the structure and reduce its visual impact on the surrounding area. Examples of camouflage design include monopoles, which do not have guy wires or support trusses and that are painted to blend in with the sky or surroundings, towers camouflaged as flag poles, monuments, steeples, or the integration of rooftop towers onto existing buildings, water towers, etc. Ordinance No. Page 4 Rooftop towers must use materials similar to or that blend in with the structure to which it is attached. Other camouflaged tower structures must be of similar height and appearance as other similar structures allowed in the zone, e.g. towers camouflaged as light poles or utility poles must be of similar height and appearance as other such poles. The applicant must include an illustration of how the tower would appear in the proposed location. (4) The proposed tower will be no taller than is necessary to provide the service intended. Evidence presented should include coverage maps illustrating current gaps in coverage and changes to coverage with the proposed tower. In the ID-C (except areas intended for CN-1), CH-1, CC-2, CI-1, CB-2, CB-5 and CB-10 Zones, communications towers are exempt from the maximum height standards of the base zone, but under no circumstance may the tower be taller than 120 feet from grade. In the CO- 1, CN-1, and any ID-C Zone intended for CN-1, communications towers must comply with the same height standards that would apply to the type of structure to which they are attached or if a communications tower is camouflaged to appear similar to another common structure allowed in the zone, it must comply with the same height standards that would apply to the type of structure that it emulates. For example, if the tower is camouflaged as a light pole, flag pole, or utility pole it must not exceed the height limitation for such structures as specified in the base zone. If no height standard exists in the code for such a structure, it must be designed to be of similar height and appearance to other similar or typical structures. If the tower is camouflaged as a chimney or other similar rooftop structure, the Board may exempt it from the base zone height standards if it is designed as if it were an integral part of the building and is not out of scale or proportion to other similar rooftop structures. (5) The proposed tower will be setback at least a distance equal to the height of the tower from any Residential Zone, ID-RS Zone, and ID-RM Zone. (6) Any equipment associated with the tower facility will be enclosed in an equipment shed, cabinet, or building, which must be adequately screened from view of the public right-of-way and any adjacent residential or commercial property. (7) The proposed tower will not utilize a back-up generator as a principal power source. Back-up generators may only be used in the event of a power outage. (8) In the CN-1 and CO-1 Zones and in any ID-C Zone that is intended for a future CN-1 Zone, strobe lighting is prohibited. Therefore, any tower that requires such illumination is prohibited in these zones. The tower will not be illuminated by strobe lights unless required by federal regulations. If alternatives are allowed under federal guidelines, strobe lights may not be used. (9) The proposed tower must be designed and constructed to accommodate at least one additional user, unless in doing so the tower will exceed the 120 foot height limitation or if the Board of Adjustment determines that allowing the additional height needed to accommodate another user will detract from the area to the extent that it will prevent future development intended Ordinance No. Page 5 in the zone. The applicant shall provide a certification by a professional engineer licensed in this state that the proposed tower will be designed to permit a second antenna system of comparable size to be added to the tower above or immediately below the original antenna system. (10) If use of the tower is discontinued, the tower and any associated equipment must be removed by the owner of the tower, the operator, or the owner of the property within one year of discontinuance of use and the land graded and re -planted to prevent erosion. The applicant shall present a signed lease agreement, a recorded declaration of covenants, or other satisfactory evidence acknowledging this obligation. 6. Communication Transmission Facilities in Industrial and Research Park Zones and the ID -RP and ID-1 Zones a. Communications antennae are permitted in all Industrial and Research Park Zones and in the ID -I and ID -RP Zones, provided the antenna is mounted on another structure allowed in the zone, such as a rooftop, light pole, or utility pole. b. Communications towers are allowed in the ID -I, 1-1 and 1-2 Zones and by special exception in the ID -RP, RDP and ORP Zones, provided the following conditions are met: (1) The proposed tower will be setback at least a distance equal to the height of the tower from any Residential Zone, ID-RS Zone, and ID-RM Zone. (2) The tower and any associated equipment, buildings, or structures must be screened from the public right-of-way and any bordering Residential or Commercial Zone to at least the S3 standard (See Article 14-5F, Screening and Buffering Standards). (3) The proposed tower must be designed and constructed to accommodate at least two additional users. The applicant shall provide a certification by a professional engineer licensed in this state that the proposed tower will be designed to permit two additional antenna systems of comparable size to be added to the tower above or immediately below the original antenna system. (4) If use of the tower is discontinued, the tower and any associated equipment must be removed by the owner of the tower, the operator, or the owner of the property within one year of discontinuance of use and the land graded and re -planted to prevent erosion. The applicant shall present a signed lease agreement, a recorded declaration of covenants, or other satisfactory evidence acknowledging this obligation. Order Code RS20783 Updated September 4, 2008 The Siting of Wireless Communications Facilities: An Overview of Federal, State, and Local Law Kathleen Ruane Legislative Attorney American Law Division Summary The siting of wireless communications facilities has been a topic of controversy in communities all over the United States. Telecommunications carriers need to place towers in areas where coverage is insufficient or lacking to provide better service to consumers, while local governing boards and community groups often oppose the siting of towers in residential neighborhoods and scenic areas. The Telecommunications Act of 1996 governs federal, state, and local regulation of the siting of communications towers by placing certain limitations on local zoning authority without totally preempting state and local law. This report provides an overview of the federal, state, and local laws governing the siting of wireless communications facilities.' Federal Law Governing the Placement of Wireless Telecommunications Facilities Section 704 of the Telecommunications Act of 1996 governs federal, state, and local regulation of the siting of "personal wireless service facilities" or cellular communication towers.' Under the 1996 Act, state and local governments are prohibited from unreasonably discriminating among "providers of functionally equivalent services."' This prohibition has been interpreted to provide state and local governments with the "flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even ' This report was originally written by Angie Welborn, formerly a Legislative Attorney, American Law Division. ' Codified at 47 U.S.C. 332(c)(7). 3 47 U.S.C. 332(c)(7)(B)(i)(I). Congressional Research Service - v The Library of Congress Prepared for Members and Committees of Congress CRS-2 if those facilities provide functionally equivalent services."4 However, state and local governments cannot adopt policies that prohibit or have the effect of prohibiting the provision of personal wireless services.' This provision not only applies to outright bans on tower siting, but also to situations where a state or local government's "criteria or their administration effectively preclude towers no matter what the carrier does."' In these cases, the carrier must show "not just that this application has been rejected but that further reasonable efforts are so likely to be fruitless that it is a waste of time even to try."' The act also prescribes certain procedures that a state or local government must follow when reviewing a request to place, construct, or modify personal wireless service facilities. The state or local government must "act on any request for authorization to place, construct or modify personal wireless service facilities within a reasonable period of time after the request is duly filed."' If the state or local government denies the request, the denial must be in writing and supported by "substantial evidence contained in a written record."' Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."10 Courts have found that aesthetics may constitute a valid basis for the denial of a wireless permit so long as there is substantial evidence of the adverse visual impact of the proposed tower." In fact, according to one court, "nothing in the Telecommunications Act forbids local authorities from applying general and nondiscriminatory standards derived from their zoning codes, and ... aesthetic harmony is a prominent goal underlying almost every such code."12 Federal courts therefore have routinely upheld the denials of applications to construct wireless towers where the decisions of local entities were in writing and based on evidence that the tower would diminish property values, reduce the ability of property owners in the vicinity of the proposed tower to enjoy their property, or damage the scenic qualities of the proposed location.13 However, generalized aesthetic a Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 639 (2nd Cir. 1999). 5 47 U.S.C. 332(c)(7)(B)(i)(II). 'Town of Amherst, New Hampshire v. Omnipoint Communications Enterprises, Inc., 173 F.3d 9, 14 (ls` Cir. 1999). ' Id. '47 U.S.C. 332(c)(7)(B)(ii). y 47 U.S.C. 332(c)(7)(B)(iii). 10 Nextel Partners of Upstate New York, Inc. v. Town of Canaan, 62 F.Supp.2d 691, 695 (N.D. N.Y. 1999), citing Universal Camera v. NLRB, 340 U.S. 474, 477 (1951). " See e.g., Preferred Sites, LLC v. Troup County, 296 F.3d 1210 (11ih Cir. 2002), Southwestern Bell Mobile Sys. v. Todd, 244 F.3d 51 (1st Cir. 2001), Omnipoint Corp. v. Zoning Board, 181 F.3d 403 (3d Cir. 1999), AT&T Wireless PCS, Inc. v. Winston-Salem Bd. of Adjustment, 172 F.3d 307 (4th Cir. 1999). 12 Aegerter v. City of Delafield, 174 F.3d 886, 891 (7th Cir. 1999). 13 See USCOC of Greater Iowa, Inc. V. Zoning Bd. of Adjustment, 465 F.3d 817 (8th Cir. 2006) (upholding the denial of a permit to construct a tower based in part upon the fact that the tower would obstruct the view from the window of nearby residential property), Omnipoint Commc'n (continued...) CRS-3 concerns will not be considered "substantial evidence" to support the denial of a permit.14 For example, the Seventh Circuit upheld the reversal of a denial of a petition based on aesthetic concerns where the only evidence that the proposed tower would be unsightly was the testimony of a few residents that they did not like poles in general, and those residents admitted that they had no objection to flagpoles, the proposed disguise for the wireless tower.15 Blanket opposition to poles could not constitute "substantial evidence," in the opinion of the court.16 Many community groups also oppose the siting of towers based on health and environmental concerns." However, the Telecommunications Act of 1996 prohibits state and local governments from regulating the placement of personal wireless service facilities on the basis of the effects of radio frequency emissions if the facility in question complies with the Federal Communications Commission's regulations concerning such emissions." "As written, the purpose of the requirement is to prevent telecommunications siting decisions from being based upon unscientific or irrational fears that emissions from the telecommunications sites may cause undesirable health effects."19 Courts have enforced this provision of the act and have noted that "concerns of health risks due to the emissions may not constitute substantial evidence in support of denial."20 The act also provides for the appeal of a state or local government's denial of a request to place, construct, or modify a facility." Section 704(c) of the Telecommunications Act provided that within 180 days of the enactment of the act, "the President or his designee shall prescribe procedures by which Federal departments and agencies may make available on a fair, reasonable, and nondiscriminatory basis, property, rights -of -way, and easements under their control for " (...continued) v. City of White Plains, 430 F.3d 529 (2nd Cir. 2005) (concluding that the zoning board was entitled to rely on aesthetic objections raised by members of the community that are familiar with the area); Voicestream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818 (7th Cir. 2003) (holding that the county's denial of a wireless tower permit was supported by substantial evidence that the proposed tower would mar an especially scenic stretch of land). 'a New Par v. City of Saginaw, 301 F.3d 390, 398 (6th Cir. 2002). 'S Prime Co Personal Commc'n v. City of Mequon, 352 F.3d 1147, 1151 (7th Cir. 2003). 16 Id. " Malcolm J. Tuesley, Not in My Back Yard: The Siting of Wireless Communications Facilities, 51 Fed. Comm. L. J. 887, 902. 18 47 U.S.C. 332(c)(7)(B)(iv). Cellular Phone Task Force challenged the FCC's RF radiation guidelines. Cellular Phone Task Force v. FCC, 205 F.3d 82 (2nd Cir. 2000). The Court upheld the FCC's radiation guidelines, finding that they were not arbitrary and capricious under the circumstances. Id. at 96. 19 51 Fed. Comm. L. J. at 902. 20 Telespectrum, Inc. v. Public Service Commission of Kentucky, 227 F.3d 414 (6" Cir. 2000). See also Illinois RSA No. 3, Inc. v. County of Peoria, 963 F.Supp. 732, 745 (C.D. Ill. 1997). " 47 U.S.C. 332(c)(7)(B)(v). CRS-4 the placement of new telecommunications services."22 President Clinton issued a memorandum on August 10, 1995, directing the Administrator of General Services, "in consultation with the Secretaries of Agriculture, Interior, Defense, and the heads of such other agencies as the Administrator may determine, to develop procedures necessary to facilitate appropriate access to Federal property for the siting of mobile services antennas."23 The General Services Administration published procedures for the placement of commercial antennas on federal property in the Federal Register on March 29, 1996.24 On March 14, 2007, the General Services Administration published updated procedures for the placement of commercial antennas on federal property in the Federal Register .2' These replacement procedures shall remain in effect indefinitely.26 State Statutory Provisions Apart from the specific limitations set forth in the Telecommunications Act of 1996, federal law does not appear to affect state or local zoning authority with regard to the placement of wireless communications towers.27 Most states delegate zoning authority to local bodies. However, some states offer guidance on what factors should be considered by the local entities when considering applications for permits to construct wireless communications facilities. For example, the State of New Hampshire has enacted a law concerning the visual effects of tall wireless antennas. 2' The law does not alter any municipal zoning ordinance or preempt the Telecommunications Act of 1996.21 It does, however, recognize that the visual effects of tall antennas "may go well beyond the physical borders between municipalities," and in doing so it encourages local governing bodies to address the issue "so as to require that all affected parties have the opportunity to be heard."30 The statute also provides that carriers, wishing to build personal wireless service facilities, should consider commercially available alternatives to the tall towers, such as lower antenna mounts, disguised or camouflaged towers, and custom designed facilities to minimize the visual impact on the surrounding area.31 An Illinois law sets forth guidelines for telecommunications carriers to consider when choosing a location for and designing a facility.32 The law specifically states that it does "not abridge any rights created by or authority confirmed in the federal 22 P.L. 104-104, § 704(c). 23 Facilitating Access to Federal Property for the Siting of Mobile Services Antennas, 31 Weekly Comp. Pres. Doc. 1424 (August 10, 1995). 2' 61 Fed. Reg. 14,100 (1996). 25 72 Fed. Reg. 11,881 (2007). 26 72 Fed. Reg. 11,881 (2007). 27 47 U.S.C. 332(c)(7)(A). 2' R.S.A. 12-K:1, effective August 7, 2000. 29 R.S.A. 12-K:1(I) and (VI). 3o R.S.A. 12-K:I(II). 31 R.S.A. 12-K:1(II1). 12 55 ILCS 5/5-12001.1. CRS-5 Telecommunications Act of 1996."33 Rather, the law offers a list of locations - from "most desirable" to `least desirable" - for the siting of telecommunications facilities, with non -residentially zoned lots as the most desirable and residentially zoned lots that are less than 2 acres in size and used for residential purposes as the least desirable.34 The guidelines set forth for designing a facility include preserving trees in the area or replacing trees removed during construction, landscaping around the facility, and designing facilities that are compatible with the residential character of the area." In addition to the alternatives listed above, states can encourage the use of existing infrastructure as opposed to the construction of new facilities in order to reduce the total number of towers in an area. For example, in Kentucky, state law allows the local planning commission to require the company applying for the construction permit "to make a reasonable attempt to co -locate" their equipment on existing towers if space is available and the co -location does not interfere with the structural integrity of the tower or require substantial alterations to the tower.36 The statute gives the planning commission the authority to deny an application for construction based on the company's unwillingness to attempt to co- locate.37 Connecticut has also enacted a law which allows local entities to require the sharing of towers whenever it is "technically, legally, environmentally and economically feasible, and whenever such sharing meets public safety concerns."" Local (Municipal or County) Law Many local governments, through the use of their zoning authority, attempt to limit the impact cellular towers have on the surrounding environment. One county in Georgia, enacted a "Telecommunications Tower and Antenna Ordinance," which set up a new permit system for the construction of cellular towers in an effort to encourage construction in nonresidential areas," In commercial or light industrial areas, a wireless service provider can build a tower without review by the County Board of Commissioners as long as a certain set of specifications are met.40 However, if a service provider wanted to construct a tower in a residential area, a hearing is held on the matter, and construction 33 55 ILCS 5/5-12001.1(b). 34 55 ILCS 5/5-12001.1(d). " 55 ILCS 5/5-12001.1(e). 36 K.R.S. § 100.987(6). Under federal law, utilities are required to provide telecommunications carriers "with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by [the utility]." 47 U.S.C. 224(f)(1). 37 K.R.S. § 100.987(7). 31 Conn. Gen. Stat. § 16-50aa. 39 Robert Long, Allocating the Aesthetic Costs of Cellular Tower Expansion: A Workable Regulatory Regime, 19 Stan. Envtl. L. J. 373, 378. The full text of the ordinance is available at [http://www.gwinnettcounty.com/departments/planning/pdf/tower.pdf] . 40 Id. CRS-6 permits are subject to denial if a set of nine criteria are not met .41 In an effort to reduce the number of facilities in the area, the City of Bloomington, Minnesota, enacted an ordinance that requires wireless facilities to be designed to accommodate multiple users.42 In direct response to the limitations set forth in the Telecommunications Act of 1996, several communities enacted moratoria on permits for cellular towers in an effort to prevent or delay the construction of cellular communications towers.43 Under the act, local governments cannot act to prohibit or have the effect of prohibiting wireless communication services in their communities.44 Local governments justify the imposition of moratoria by claiming that they need time to study the problems with tower siting and how they should change their zoning ordinances to accommodate construction.41 Courts have upheld moratoria that have a fixed length, such as six months.46 However, they are less likely to uphold those that are for long periods of time or indefinite.47 Recent Developments The FCC's Wireless Telecommunications Bureau is seeking comment on a petition for a declaratory ruling filed by CTIA - The Wireless Association in July of 2008.48 In its petition, CTIA expressed concerns about the delays many wireless providers face when applying to local and state zoning authorities to site wireless facilities. As a result, CTIA has asked the FCC (1) to clarify the time period in which a state or local zoning authority must act on a wireless facility siting request; (2) to declare that a failure by a state or local zoning authority to act on a siting request within that time shall result in the application being "deemed granted," or, alternatively, that the applicant is entitled to a court -ordered injunction granting the application, unless the zoning authority can justify the delay; (3) to clarify that Section 332(c)(7)(13)(i) prohibits zoning decisions that have the effect of prohibiting additional entrants from offering service in a given area (in other words, to declare that Section 332(c)(7)(13)(i) is not satisfied by the presence of a single wireless provider in an area); and (4) to preempt all ordinances and regulations that automatically require all wireless siting applications to obtain a variance.41 Comments are due on September 15, 2008. 41 Id. The ordinance states that towers built in residential areas must comply with certain requirements, such as topography, height, setback, access driveways or easements, parking, fencing, landscaping, and adjacent uses. Id. at n. 35. 4' 51 Fed. Comm. L. J. at 909, citing Bloomington, Mn., Code 19.63.05(a)(1)-(4)(1996). 4' David W. Hughes, When NIMBY's Attack: The Heights to Which Communities Will Climb to Prevent the Siting of Wireless Towers, 23 Iowa J. Corp. L. 469, 488. 44 47 U.S.C. 332(c)(7)(13)(i). 4' 23 Iowa J. Corp. L. at 488. 46 See Sprint Spectrum L.P. v. City of Medina, 924 F. Supp. 1036 (W.D. Wash. 1996). 47 See e.g. Spring Spectrum L.P. v.'Jefferson County, 968 F. Supp. 1457 (N.D. Ala. 1997). 48 Public Notice, Wireless Telecommunications Bureau Seeks Comment on Petition for Declaratory Ruling by CTIA, (released August 14, 2008). 49In the Matter ofPetition forDeclaratory Ruling to Clark Provisions ofSection 332(c)(7)(B), WT Docket No. 08-165, July 11 2008. MINUTES PRELIMINARY IOWA CITY BOARD OF ADJUSTMENT OCTOBER 14, 2009 — 5:00 PM EMMA J. HARVAT HALL MEMBERS PRESENT: Caroline Sheerin, Barbara Eckstein, Terry Hora, Will Jennings, Robert Anderson MEMBERS EXCUSED: None STAFF PRESENT: Sarah Walz, Sara Greenwood Hektoen OTHERS PRESENT: Brian Ramirez, Kapesh Patel, David Bailie, Duane Musser RECOMMENDATIONS TO CITY COUNCIL: None. CALL TO ORDER: The meeting was called to order by Chairperson Caroline Sheerin at 5:07 p.m. An opening statement was read by the Chair outlining the role and purpose of the Board and the procedures governing the proceedings. ROLL CALL: Eckstein, Sheerin, Jennings, Anderson and Hora were present. CONSIDERATION OF THE MINUTES FOR SEPTEMBER 9T" 2009: Sheerin offered corrections to the minutes. Jennings moved to approve the minutes as amended. Hora seconded. The motion carried 5-0. Iowa City Board of Adjustment October 14, 2009 Page 2 of 12 SPECIAL EXCEPTIONS: EXC09-00005: Discussion of an application submitted by AT&T Mobility for a special exception to allow construction of a 100-foot cell phone tower in a Community Commercial (CC-2) zone at 925 Highway 6 East. The tower would be located off Crosspark Avenue, behind the building that houses Tuesday Morning. Walz said that at the last meeting the Board had directed Staff to provide information on other towers in the area where AT&T might collocate, as well as more detailed coverage information on the US Cellular tower on Olympic Court and the MidAmerican towers near Kirkwood Community College. Walz explained that the MidAmerican towers fall outside of the half -mile radius that the special exception criteria require for possible collocation —this is why the towers were not identified by staff. Walz said that Staff is not aware of any towers within a half -mile radius of the proposed tower that would meet the provider's coverage requirements. Walz said that the Olympic Court tower was approved at 60 feet in height and the that City has no authority to go back and require a taller tower on their site to accommodate another carrier. Walz said that two representatives of the applicant were present to speak more fully to coverage issues. Sheerin invited the applicant to speak Brian Ramirez, an AT&T representative, said that he had brought a radio engineer to help the answer any issues the Board might have regarding coverage. Kapesh Patel, an AT&T radio engineer, gave a power -point presentation which demonstrated the differing coverage areas AT&T could get with towers of differing heights at the proposed location; the higher the tower, the greater the coverage area. Patel explained that the US Cellular tower on Olympic Court did not have adequate space or height for the needs AT&T was trying to meet with the proposed tower. Patel said that the MidAmerican towers are lower than the proposed AT&T tower, and are also very close to two AT&T cell sites where coverage is already adequate. Patel noted that there was an alternate location near the K-Mart site that had also been proposed by AT&T; it would offer similar coverage but would be problematic in that it is more visible and would require a fenced compound for equipment. Patel offered to answer any questions from the Board. Anderson said that his understanding was that Hora had expressed concerns at the last meeting about the number of towers in this neighborhood, and whether or not collocation was possible to avoid building a new tower. Anderson asked if AT&T was addressing this concern by making their proposed tower "collocate -able" for other providers looking to expand coverage in that community. Patel said that they are. Ramirez said that the FAA allowed a maximum height of 100 feet in that area, and that there will be four canisters inside the pole; AT&T will occupy the top two canisters. Patel explained that the structure will be a stealth monopole where the antennas are hidden inside a shrouded canister. Iowa City Board of Adjustment October 14, 2009 Page 3 of 12 Walz noted that the second choice mentioned by Patel did have the shortcomings described by Patel, but also had the advantage of being across the street from commercial property rather than residential. Patel noted that the second choice site provided close to the amount of coverage offered by the proposed site, but that the proposed site provided the best coverage. Jennings noted that if another provider wished to collocate on the tower, that provider would actually have to collocate at lower heights than the AT&T canisters. Jennings asked if the same situation would not then arise that made the US Cellular tower problematic for AT&T; while the tower may be 100 feet, the available canisters will be far less than that. Ramirez explained that even at the lowest level of the proposed tower, the available canisters will still be approximately 30 feet higher than the US Cellular pole. Patel noted that the airport severely restricts how high a tower can be built in this area. Eckstein asked Greenwood Hektoen if there was anything in City code regulating the density of cell phone towers, or guidance to make a reasonable judgment about when coverage is good enough for a given area. Eckstein said she sees no way of controlling this process if there is no code addressing those issues. Greenwood Hektoen replied that the specific criterion requires that a new tower must be in an area that is not served by an existing tower. She said this is the way that density is presently controlled. Eckstein noted that there are a lot of different carriers. She said that in looking at coverage maps, the coverage refers to AT&T's coverage, not cell phone coverage as a whole. Patel said this was correct, and that the biggest boost from a new tower would come to coverage inside of buildings. Greenwood Hektoen stated that right now Eckstein's suggestion is not presently one of the criteria that the Board would be able to judge the application on. Walz said it is a struggle because there are competing interests within the criteria. She noted that the towers are to be constructed at the minimum height to provide service, but that the City also wants the greatest potential for co -location. She said that these towers are proliferating, but that she is not sure how that can be addressed because there are multiple providers. Walz said that the City Council was considering a code amendment that would allow cell phone towers in the ID-RS zone. This zone consists of areas that will be future residential zones, but are not presently zoned for development. Walz said the criteria for that special exception would require that the applicant demonstrate that the tower cannot be located in a commercial or industrial zone. Eckstein asked if it was within the purview of the City to have regulations on density of towers. Greenwood Hektoen said that it is regulated in non-specific ways, through the criteria of the special exception. Eckstein said that she believes the current code offers too little guidance and is not forward looking on this subject. She asked if it was within the purview of the Board to write a letter to Staff or the City Council saying that the Board feels there is not enough guidance in the current code. Greenwood Hektoen said that if the Board wished to amend the criteria for having cell phone towers then an amendment to the code would be required to do so; such amendments are generally initiated by City Council. Hora asked if Walz was contending in the staff report that the City did not have authority to require cell phone companies to co -locate on another company's towers. Walz clarified that what the City does not have the authority to do is to retroactively require US Cellular to allow their pole to be replaced by another company's pole in order to accommodate co -location. The City has already granted US Cellular the right to that pole and cannot now force them to change it. Hora asked if the City has the authority to ask a vendor to collocate on the proposed pole in the future rather than allow another tower to be built. Greenwood Hektoen said that the Board Iowa City Board of Adjustment October 14, 2009 Page 4 of 12 would have the right to reject an application if there is another suitable pole upon which they can co -locate within a half -mile radius of their proposed site. There were no further questions for the applicant or Staff. Sheerin opened the public hearing, and asked if there was anyone present who wished to speak in favor of the application. Seeing no one, she asked if there was anyone wishing to speak in opposition to the application. Seeing no one, she opened the matter for Board discussion. Hora said he was hoping that somewhere along the line the number of cell phone towers could be reduced because he feels the density is becoming too much. Hora said he felt there was no other option but to vote in favor of the application at present. He said he was concerned about the future and the tendency toward ever-increasing demands of technology. Sheerin noted that it was discussed in the last meeting that there should be no lighting on the tower. Hora and Eckstein agreed that lighting was unnecessary. Eckstein said that while their specific questions had been answered by AT&T's representatives, it was not really the place of those representatives to answer the larger questions. Jennings said he thinks this application raises a number of issues concerning technology and its advances. He noted that television antennas were also once ubiquitous eyesores in neighborhoods and now are all but obsolete. Jennings said that the provisions of the code do not address the idea of a receptive technology in the future that may influence whether these towers stay up or come down. He said the issue of continued review has not been resolved. However, he said he concurred that the application must be approved under the current constraints of the code. Sheerin called for a motion. Eckstein moved to approve special exception EXC09-00005, an application for a communication transmission facility in the CC2 zone located at 925 Highway 6 East, subject to the following conditions: • compliance with the site plan and all specifications regarding the tower design and enclosure submitted as part of the application, including; • the cell tower will have no lighting of any kind; • the cell tower will be finished in galvanized grey to match other light poles in the area, or in another color to be approved by Staff; Jennings seconded. Sheerin closed the public hearing and invited the findings of fact. Jennings offered the findings of fact. He noted that in compliance with the specific standards, the proposed tower serves an area that cannot be served by an existing tower or industrial property, or by locating antennae on existing structures in the area. The applicant has documented attempts to utilize existing towers or structures within one-half mile of the proposed Iowa City Board of Adjustment October 14, 2009 Page 5 of 12 tower. There are no existing towers or commercial structures in this area that are of sufficient height to meet the applicant's needs. Jennings said that the applicant has demonstrated that the proposed tower will be constructed in a manner that will camouflage the structure and reduce its visual impact on the area. The monopole design has no trusses, guide -wires, or strobe lighting, and the antennas are mounted within the pole. The proposed tower will be no taller than is necessary for its intended purpose, as is required by the specific standards. The applicant has provided coverage maps to demonstrate the varying coverage resulting from differing tower heights. The proposed tower will be set back at least equidistant from any residential zone as it is 102 feet from Cross Park Avenue. The specific standards require that adequate screening measures are taken for any equipment associated with the tower. In this case, condensing units will be screened by a privacy fence and all other associated equipment will be stored inside the building. There is a tall dense row of evergreen trees to additionally screen the area from residential properties. The applicant has indicated that there is no back-up generator associated with this site, which is compliance with the specific standards. There will be no strobe lighting on the tower. The design of tower accommodates at least two other users, as is required by the specific standards. If the use of the tower is discontinued, then the tower and its associated equipment must be removed no later than one year from the date of discontinued use; the applicant has readily agreed to comply with this requirement. Jennings stated the general standards for this special exception had also been met. Jennings said that the proposed exception will not be detrimental to or endanger the public health, safety, comfort or general welfare because the proposed tower is set back more than 100 feet from the property line and the associated equipment is screened by a privacy fence. The use will not be injurious to the enjoyment of property in the immediate vicinity and will not substantially diminish property values in the area because the setbacks and screening proposed for the tower are adequate. This special exception will not impede the normal orderly development of the area for uses permitted in the zone because of its inconspicuous design and the screening involved. Necessary access roads, drainage, and utilities have already been provided and no improvements are necessary; adequate electrical and phone service will be provided by the applicant. Egress and ingress is not affected by this proposed use as no additional traffic will be generated by the tower. This specific proposed exception conforms to all other standards of the zone in which it will be located and complies with the Comprehensive Plan. Eckstein noted that this tower will provide phone coverage for AT&T customers that would otherwise not be possible, but does not increase cell phone coverage in general. Hora said he hopes AT&T will encourage other providers to co -locate in their facility in the near future. Anderson said he would like to reiterate that the benefit from this tower will be for AT&T customers, and is not necessarily reflective of the absence of coverage by other providers. Sheerin added that the absence of lighting elements on the pole are important to her, and that providing cell phone coverage for AT&T customers is an important need in the community. A vote was taken and the motion carried 5-0. Iowa City Board of Adjustment October 14, 2009 Page 6 of 12 Sheerin declared the motion approved and stated that anyone wishing to appeal the decision to a court of record can do so within thirty days after the decision is filed with the City Clerk's Office. EXC09-00006: An application submitted by Hy-Vee, Inc. for a special exception for a drive -through facility located in the CC-2 (Community Commercial) zone at 1720 Waterfront Drive. Walz pointed out the location on a map. She noted that this change is part of a larger expansion of the Hy-Vee store. Walz noted changes in traffic patterns that would result from the expansion of the store, including an additional access point onto Boyrum Street. The special exception is for the new pharmacy drive -through, and takes into consideration the grocery pick-up lane. The drive -through for the pharmacy is in the outside lane and will be serviced by a pneumatic tube system. Walz walked the Board through the specific criteria for this special exception. She said that the number of drive -through lanes and stacking spaces will not be detrimental to adjacent residential properties because there are no residential properties in the area. The drive -through will not detract from or unduly disrupt pedestrian circulation or the commercial character of the area where the special exception is located. Walz said that safe and efficient pedestrian and vehicular access is required to promote compatibility with the surrounding development and that if the Board chooses to they can require: restricting the location of the drive -through to rear or side access; requiring directional signage; limiting the number of lanes and/or amount of paving; and limiting or prohibiting the use of loudspeakers. Walz pointed out two areas on the site plan where pedestrian connections to Boyrum are located. Staff had concerns that the original site plan showed only five-foot wide sidewalk in the area between the building and the drive -through lanes. Walz said that this area of town has a fair amount of pedestrian traffic and that there will be through foot -traffic and outdoor storage and display that could diminish sidewalk widths. The applicant has since proposed ten -foot sidewalk width, which satisfies Staff's concern. In terms of stacking spaces, Walz said that Hy-Vee has indicated that traffic is light in their drive -through areas, and that the stacking spaces laid out in the site plan are adequate. Walz said that the transportation system is capable of safely supporting the proposed use in addition to the existing uses already in the area. Walz said that there is not a concern with traffic stacking onto the public street. The drive -through will be set back well in excess of the required ten feet and the area will be screened to meet the S2 requirement, Walz said. Walz said that lighting for outdoor areas must comply with the outdoor lighting standards to prevent light trespass and glare onto neighboring properties. Walz said that all of the lighting plans are being reviewed by the building official; noting that lighting could be an appropriate condition of approval if the Board decided to approve the application. Walz outlined the general standards as well. She said that the specific proposed exception will not be injurious to the public health, safety, comfort or general welfare because broadening the Iowa City Board of Adjustment October 14, 2009 Page 7 of 12 sidewalks to a minimum of ten feet allows for greater safety. This specific exception will not be injurious to the enjoyment of immediate properties in the vicinity or substantially diminish or impair property values in the neighborhood. This is not a problem because the property is surrounded by other commercial uses. Walz said that the proposed exception will not impede the normal, orderly development of the surrounding areas in the zone in which it is located because it is surrounded by commercial uses. Also, the addition of an access point onto Boyrum will help to alleviate current traffic issues. Walz noted that curb cuts would have to be reviewed by the Public Works Department at the time of site plan review. Ingress and egress should be improved by the change in curb - cuts to the property. This proposed exception conforms to all other aspects of the zone in which it is to be located, Walz said. The site plan is currently under site plan review by the building official to ensure compliance with all other applicable code requirements. One area being carefully reviewed is pedestrian access throughout the site, and access to nearby streets. The proposed use is in conformance with the Comprehensive Plan. However, the Comprehensive Plan also strongly emphasizes pedestrian access. With the most recent changes to the site plan, Staff feels comfortable recommending approval with the following conditions: 1. Substantial compliance with the site plan; 2. Conditioned upon the approval for the larger building site plan. Walz invited questions from the Board. Eckstein asked where pedestrians come from when entering the property. Walz pointed out where the pedestrian paths would be located, as well as the bus routes. She noted that there will be pedestrian routes marked into the concrete that people can use. Walz clarified that the special exception really only concerns the areas contiguous with the drive -through and that other areas of the site plan would be reviewed by using the site development standards. Greenwood Hektoen attempted to clarify the sixth general standard: except for specific regulations to the exception being considered the specific proposed exception conforms to applicable regulations. She noted that the task is to determine if the proposed drive through complies, not the entire site plan. Anderson asked if it was correct that the Board would not be able to make a design recommendation as a condition of the special exception. Walz said that the Board could make a recommendation for changes if the recommendation is related to the drive -through. Jennings asked if cars exiting the drive -through area would be leaving straight out Boyrum. Walz said that they would. Walz said that the landscaping requirements may keep pedestrians from crossing the parking lot areas. Walz said that more would be known about how pedestrians access the site when it was determined if all the curb -cuts in the site plan would all be allowed. Sheerin asked the applicant to present the proposal Iowa City Board of Adjustment October 14, 2009 Page 8 of 12 David Bailie, Hy-Vee, Inc., West Des Moines, said he was present to answer any questions the Board may have. He said that Hy-Vee concurs with Staff and respectfully requests that the application be approved. Bailie said that this store is long overdue for a remodel, and that the pick-up and pharmacy areas are vital parts of the operation. Hora asked if Hy-Vee had considered putting the pharmacy drive -through at the east side of the building. Bailie said they had not. He said the design had been done a number of times at other stores, and that laying that much pneumatic tubing was not ideal. Hora said that he had asked because he thought having grocery pick up and pharmacy pick up under the same canopy was somewhat congested. Bailie said that there is not a great deal of traffic that goes through that area. He said the traffic that does go through comes to a complete stop and drives slowly and carefully. Bailie said there have not been any problems with this design in the past. Duane Musser, MMS Consultants, 1917 S. Gilbert Street, said that he would compare the Hy- Vee drive through design to that of some area banks where multiple lanes converge into one exit point. He said that it is rare to have several cars moving at once. He reiterated that there have not been problems with this design in other locations. Eckstein asked if there would be an ATM machine right outside or directly inside the building where the drive -through lanes are located. She said she was concerned about the possibility of a car parking for a period of time and further congesting the area. Musser said there is an ATM somewhere inside at the front of the store. He said the whole front of the store is clearly marked as a fire lane so there is no parking allowed there. Walz asked if there was any plan to place an ATM machine outside the store in that area. Musser said there are no plans for more ATMs than the ones presently there. Eckstein asked if cars coming into the parking lot from the east would be able to also exit from the east if they came made a U-turn to come through the pharmacy lane. Musser said it depended on the driver and the car they were driving. Sheerin asked how much traffic was generated by the pharmacy window. Bailie said that it was intended as a convenience, but that not much traffic is generated by it because most people also get some kind of grocery items as well. Sheerin asked if Bailie anticipated this design increasing the amount of traffic that goes through that area. Bailie said he did not believe it would function any differently than it does currently; there are currently two lanes, it is just that one of the lanes will be for pharmacy. Walz said that having two uses, a grocery use and a pharmacy use, is a change, and does imply an increase in traffic. Bailie said he believed that this design is actually safer than the current design as there will not be employees and carts weaving between lanes. Eckstein said she could be wrong about the demographics, but that she would assume the majority of people using the pharmacy drive -through are elderly or disabled. Bailie said that there are a variety of people, but that most often when people get to the store they want to pick up something other than their prescription. Sheerin opened the public hearing. There were no members of the public present who wished to speak to the issue. Sheerin invited Board discussion. Iowa City Board of Adjustment October 14, 2009 Page 9 of 12 Sheerin said she thought the design seemed congested and would add more cars to a small area. Anderson said he too felt it was somewhat congested. Eckstein said she was mystified by how this design could be an improvement over the current design. Greenwood Hektoen said that whether the design is an improvement or not is not one of the criteria the Board is to consider. Eckstein explained that if the Board is being asked to make a special exception to go from one use to two in this site she felt it was valid to question whether the improvement being achieved was worth the special exception. Sheerin said that she thinks of the discussion of "improvement" in terms of the general criteria concerning health, safety, comfort and general welfare of the public. She said if it is congested or creating a situation where people can be hit by cars, then she does not think that is in the public welfare. Hora said he thinks the design is great. He said that the pharmacy drive -through is a convenience Hy-Vee offers to the elderly, the disabled, and other people who struggle for one reason or another to walk into the store. Hora said the only concern he has is the merging of traffic into one lane to leave the property, but he said he did not think that was an issue the Board could control. Anderson said he can appreciate Hora's position. He said that he took issue with the idea that pneumatic tubes could not be employed if the pharmacy drive -through was moved to the other end of the store. He said the University of Iowa uses a pneumatic tube system to cover significantly farther distances than that presented by moving the pharmacy drive -through to the east end of the store. Musser explained that there is vast improvement between the proposed site plan and the current configuration of the store as far as ingress and egress to Boyrum, as well as general on - site traffic circulation. Musser said that there are two lanes of traffic at the drive -through currently, and so although one use is being changed, in reality, there will not be an increase in traffic lanes. Musser said he is not an expert with tubing systems, although he is familiar with the system used by the University. He said that he imagined face to face contact was of great importance when customers are dealing with illness and medicine, and that the customer comfort level will be higher seeing a person behind the window rather than simply talking into a microphone in a wall. Musser said Hy-Vee is trying to create a customer service experience, whereas the University is simply trying to get papers shot from one end of the hospital to the other. Musser said that he felt that Staff was supportive of their plans, and that they truly feel they have a greatly improved facility with the proposed plan. Sheerin asked to clarify that the Board is to look at only the drive -through facility, not access issues to Boyrum. Walz said that the Board is not necessarily deciding whether Hy-Vee can have a drive -through; they are deciding whether Hy-Vee can have this particular drive -through configuration. Bailie said he would like to add that Hy-Vee has been in the grocery store business for about 80 years now, and that the last thing they would ever do is design something that would cause concern for their customers or put them in danger. Bailie assured the Board that the design has been well -tested at other sites, and that it is safe and functional. Sheerin closed the public hearing. Iowa City Board of Adjustment October 14, 2009 Page 10 of 12 Hora moved to approve EXC09-00006, an application submitted by Hy-Vee, Inc. for a special exception for a drive -through facility for pharmacy and grocery pick up located in the CC-2 (Community Commercial) zone at 1720 Waterfront Drive. Anderson seconded. Hora led the findings of fact. He stated that the specific criteria requires that the number of drive -through lanes, stacking spaces and paved area necessary for the drive -through facility will not be detrimental to adjacent residential properties or detract from or unduly interrupt pedestrian circulation or the commercial character of the area where it is located. Hora said there are an adequate number of stacking spaces and parking spaces for the drive -up pharmacy and the grocery pick-up. Hora noted that the lighting system will be reviewed by the building official to ensure that it is up to code. Hora said that the specific proposed exception will not be detrimental to or endanger the safety, comfort or general welfare of the public. He said the special exception will not be injurious to the use and enjoyment of other property in the immediate vicinity and will not substantially diminish or impair property values in the neighborhood. Hora said the site plan in general would improve the area. Hora stated that the establishment of the proposed exception will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the zone. Hora said the remodel and the drive -through will help to beautify the south side of town. Another general standard requires that adequate utilities, access roads, drainage and/or necessary facilities have been provided: Hora noted that they already exist in that area. Adequate measures have been taken to provide ingress or egress designed to minimize traffic congestion on public streets. Hora said that in taking the number of curb cuts down from six to a maximum of three the traffic flow and ingress/egress will be improved. Hora said that except for the specific regulations and standards applicable to the exception being considered, the specific proposed exception, in all other respects, conforms to the applicable regulations or standards of the zone in which it is to be located. Hora said that the proposed exception is consistent with the Comprehensive Plan as it is in line with the transportation goals that encourage pedestrian traffic and public transportation. Hora said that based on all that he stated he believes this is a good proposal and he will vote for it. Jennings asked for a point of clarification because he did not hear anything in the findings of fact regarding amplification systems. Walz said that issue had not been addressed in the staff report because there were no nearby residential neighborhoods to disturb. Eckstein said she wanted to be clear that the special exception is contingent upon the sidewalks having a minimum width of ten feet. Walz asked if she would like to amend the original motion. Greenwood Hektoen noted that the proposal had been revised to include that requirement so no amendment was necessary. Iowa City Board of Adjustment October 14, 2009 Page 11 of 12 Anderson said he felt the location of the pharmacy drive -through had largely been determined by the location of the interior pharmacy. Sheerin said she finds it persuasive that there is a need in the community for this drive -through pharmacy, and that she believes the applicant has carefully considered the safety implications for the community. She said that the ten -foot sidewalk is very important, and that it should be noted that traffic from the drive -through will not stack onto public streets. The proposed drive - through facility is set back more than the required ten feet from the property line. Eckstein said that she felt it was relative to add that there is no outside ATM machine in the area of the drive -through. A vote was taken and the motion carried 5-0. Sheerin declared the motion approved and stated that anyone wishing to appeal the decision to a court of record can do so within thirty days after the decision is filed with the City Clerk's Office. BOARD OF ADJUSTMENT INFORMATION: Walz noted that due to the Veteran's Day holiday on November 11th, the Board of Adjustment will hold its November meeting on November 12th at the Robert A Lee Community Recreation Center in Meeting Room A. Walz said that at this time there are no applications. Walz said she had sensed a lot of consternation with the cell phone tower criteria, and she wondered if there could be a brief discussion about things that Staff could do to clarify the matter. Greenwood Hektoen said that if there are no applications for next month, and educational meeting could be held to talk things out a bit. She noted that in terms of revising the ordinance itself, that would be a City Council matter. Walz said she was thinking about things such as how coverage charts are looked at, and how much coverage is a reasonable amount of coverage. Jennings said that one of his concerns is that there is potential for a broad demand for expansion. Eckstein said it is not really a site issue, rather one of coverage and consumer choice. Eckstein said that the information given to the Board is very partial information, and wondered if allowing one company a tower was in essence giving them a market advantage, and if so, must it then be extended to competitors as well. Greenwood Hektoen cautioned that these are philosophical issues that are also regulated by the federal government, and that the City has to steer clear of violating the Federal Communications Act. She said the current criteria are in compliance with that act. Walz and Greenwood Hektoen agreed that further discussions about purview and context might be useful. ADJOURNMENT: Jennings moved to adjourn. Eckstein seconded. Iowa City Board of Adjustment October 14, 2009 Page 12of12 The motion carried 5-0 and the meeting was adjourned at 6:48 p.m.