Loading...
HomeMy WebLinkAboutProposal to Resolve Pending Litigation u u IN THE BOARD OF ZONING APPEALS CITY OF CARMEL, CLAY TOWNSHIP, INDIANA PROPOSAL TO RESOLVE PENDING LITIGATION Litif!ation Backf!round and Overview of Proposal to Resolve the Litif!ation: On July 23, 2002, Sprint Spectrum LP ("Sprint") filed a lawsuit in the United States District Court for the Southern District of Indiana against the Board of Zoning Appeals ("BZA"), the Director, and the City of Carmel, Case No. IP 02-1133 C T/K. , Sprint asked the federal court to affirm its right under Section 5.1 of the Zoning Ordinance to co-locate its antenna on the existing HAM Radio Tower as it now stands and complete the equipment shelter at its current location on the east side of the Zamber Site and in accordance with the plans previously submitted to the BZA by Sprint. The adjacent landowner to the east, Richard Deer, intervened in the lawsuit. In order to resolve the lawsuit, Sprint, its attorneys, the Director, the attorneys for all of the City Defendants, Mr. Deer, and his attorneys, have negotiated and drafted a settlement proposal in a document called the Consent Decree (the "Proposal"). The Director now presents the Proposal to the BZA to determine if its members agree to the settlement proposal and will execute the Consent Decree, which all the other parties have agreed to execute. The Proposal includes the removal of the original HAM Radio Tower on the east side of the Zamber Site, and the construction on the west side of the Zamber Site of a new low-profile monopole-style, antenna support structure, without guyed wires or antenna arms (the "Replacement Tower") and the construction of an equipment shelter in the same style and appearance of the existing pool house and residence. The Replacement Tower, and all related antennas, equipment shelter, and other improvements are collectively referred to as the u (,;) "Replacement Facility". The Replacement Facility will be located in an area on the west side of the Zamber Site that is much less conspicuous to any of the adjacent homeowners than the current HAM Radio Tower. The terms of this proposed resolution have been memorialized in a Consent Judgment, which is attached hereto as Exhibit 1 together with the following attachments: 1) legal description of the Zamber Site (See Exhibit A to Exhibit 1), 2) an Application for Improvement Location Permit with accompanying plans and drawings for the Replacement Facility (See Exhibit B to Exhibit 1), and 3) a Memorandum of Consent Judgment to be executed by Dr. Zamber and recorded in the Hamilton County Recorder's Office so as to bind all future owners to the terms of the Proposal (See Exhibit C to Exhibit 1). The purpose of holding a public hearing on the Proposal is to provide an opportunity for public input and allow the BZA to decide in a public meeting whether to agree to settle the pending lawsuit by entering into the Consent Judgment. If the BZA executes the Consent Judgment, the litigation will be dismissed and the issues surrounding the existing HAM Radio Tower will be putto rest. Factual Backllround: The Zamber Site is zoned as a S-1 Residential District. Sprint entered into a lease with Dr. Zamber on May 14, 2001which gives Sprint unlimited access to the entire Zamber Site twenty-four (24) hours a day, seven (7) days a week for the purpose of locating or co-locating a cell tower on the Zamber Site. The original Building Permit, No. 627.01b, was issued by the Director on June 15, 2001 for the collocation by Sprint of an antenna on the existing one hundred thirty-five (135) foot tall HAM Radio tower (the "Zamber Tower"). The Zamber 2 u (;) Tower was erected in 1987 on the east side ofthe Zamber Site and is a legal non-conforming use in the S-1 Residential District. The Zamber Tower has three lateral antennas that extend approximately twenty-two (22) feet from either side of the Zamber Tower. The Zamber Tower is also supported by several guyed wires, which extend from the Zamber Tower to the ground. The Director revoked the Building Permit on August 23, 2001. Deer had previously appealed the issuance of the Building Permit and Sprint subsequently appealed the revocation of the Permit. Sprint initiated the litigation on July 23,2002 and the parties engaged in negotiations to resolve the dispute. Details of the Proposal: The Zamber Tower is a legal non-conforming use in the S-l Residential District. Section 25.13.4 of the Zoning Ordinance, entitled "Non-Conforming Use," authorizes the "owner of a tower or antenna to construct a new tower or antenna on the same premises at a height not to exceed the existing tower or antenna if the use of premises is not substantially altered and the existing tower or antenna is removed immediately upon completion of the new tower or antenna. " In accordance with Section 25.13.4 and after completion of the Replacement Facility on the Zamber Site, Sprint is willing to remove the Zamber Tower from its current location on the same premises. First, Sprint would construct the ReplacementFacility on the west side of the Zamber Site, including a new low- profile monopole-style, antenna support structure without guyed wires and antenna arms (the "Pole"), an equipment shelter, and other improvements more specifically set forth in the Application. note After Sprint receives a Certificate of Occupancy for the Replacement Facility, it will have thirty (30) days to remove all components of the 3 u w Zamber Tower, including the tower itself, the guyed wires and anchors, the partially constructed building (equipment shelter), and the access drive, all of which are in the direct view of the Deer property and centrally located on the east side of the Zamber Site. The Replacement Tower will have a maximum height of one hundred twenty-seven (127) feet above ground level (as measured from the top of the Pole), with lightning protection rod(s) extending up to eight (8) feet above the top of the Pole, with a Pole diameter at the base not to exceed four (4) feet and a diameter at the top not to exceed two (2) feet, in a galvanized gray color, and all telecommunications antenna attached to the Pole (not to the lightning rod) shall be restricted to no more than two (2) sets of "flush mounted" antenna as that term is more particularly defined and described in the Application, including all attachments (see Exhibit A to Exhibit 1), to be utilized by not more than two (2) communication companies for communications purposes and which also may be used by Zamber for HAM radio purposes, all in conformity with the Application. Access to the Replacement Facility from the public street will be from the preexisting, exclusive driveway on the Zamber Site, which is located approximately one hundred (100) feet East of Ditch Road on Queens Way, and approximately four hundred (400) feet from the Deer property to the East. There are currently no curbs or sidewalks in the area surrounding the Zamber Site. No additional curb cuts or road improvements are recommended by the Director in order to maintain the residential character of the property and surrounding neighborhood. Access to the Replacement Facility from the preexisting, exclusive driveway will be provided by a paved service as required by the Zoning Ordinance, which will be approximately twelve (12) feet by one hundred twenty (120) feet, with one (1) additional parking space that will also serve as a turnaround. 4 w w Included in the plans attached to the Application are landscaping details to partially camouflage the Replacement Facility. Sprint will screen the pole with seven (7) mature Norway Spruces that are at least ten (10) feet in height and 3 Sugar Maples. Also camouflaging the Replacement Facility will be the six (6) existing fully grown trees. Comoliance with Zonim! Ordinance: Under Section 25.13.4, the Zamber Tower has been grandfathered as a legal non- conforming use. As such, the Zoning Ordinance allows for the construction of a new tower on the same premises "at a height not to exceed the existing tower or antenna if the use of premises is not substantially altered and the existing tower or antenna is removed immediately upon completion of the new tower or antenna." The Zamber Tower will be removed immediately upon completion of the Replacement Facility and the height of the Replacement Tower will not exceed the height of the Zamber Tower. Futhermore, although a special use permit is not required here to determine whether the BZA should agree to the Proposal and execute the Consent Judgment, the factors listed under Section 21.3 of the Zoning Ordinance for proposed special uses indicate that a special use would be allowed in this matter under the Zoning Ordinance. Specifically, (Mike.. ..working on the right words, but its all in here already I think) Finally, Section 25.13.1 of the Zoning Ordinance requires a setback of two hundred twenty-seven (227) feet, which would place the Replacement Facility directly inside the swimming pool on the Zamber Site. Although a variance is not required for the Board to enter into the Consent Decree, the facts meet the variance standards under Section 30.4 of the Zoning Ordinance. The Replacement Facility will not be injurious to the public health, safety, or the general welfare of the community in that the Replacement Facility will be located in an isolated 5 u w corner of the Zamber Site, as contrasted to the central location of the existing Zamber Tower that is plainly in the view of adjacent property owners and their guests, and within a group of fully grown existing and additional trees. The proposed Replacement Facility will still also be constructed in line with the Carmel Clay Twenty-Year Thoroughfare Plan. The Thoroughfare Plan contemplates a forty (40) foot right-of-way on the Zamber Site along the entire Ditch Road frontage. Although there is not currently a forty (40) foot right-of-way, Sprint and Dr. Zamber agree to locate the Replacement Facility outside the contemplated right-of-way and more than forty (40) feet from Ditch Road. The use and value of the area adjacent to the Zamber Site will not be affected in a substantially-adverse manner by the reduced setbacks. The Zamber Tower, which includes large arms and guyed wires centrally lo~ated on the Zamber Site and in the direct view of the Deer property will be completely removed. The location of the new low profile Replacement Tower will be located closer to Ditch Road than to the adjacent properties and in the comer of an isolated area. This new location should only improve the use, value and character of the adjacent properties. Conclusion: The Proposal complies with all sections of the Zoning Ordinance and effectuates its intent regarding cellular towers, which is to balance the interests of cellular service providers against the interests of the CarmeVClay community in maintaining its land use policies. The Director has participated in evaluating and negotiating the Proposal and considers executing the Consent Decree in the best interests of the City and the adjacent landowners. The BZA's consent to the terms of the Proposal is necessary for the litigation to be resolved. The Director respectfully recommends that the BZA agree to the Proposal as set forth 6 u u in the Consent Judgment attached hereto as Exhibit 1 and join the other parties in executing the Consent Judgment, after the BZA reviews this Proposal, the Consent Judgment and its attachments, and hears any public comment. RESPECTFULLY SUBMITTED BY: DATE: Michael P. Hollibaugh, Director of the Department of Community Services, Carmel, Indiana 594668_1 7