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HomeMy WebLinkAboutMinutes BZA 02-18-03 Special MeetinggIVIV�'�' of CAq`� C i ty of arme Carmel /Clay Advisory Board of Zoning Appeals Special Public Meeting Tuesday, February 18, 2003 The Special Meeting was held at 1:30 PM in the Council Chambers of Carmel City Hall on February 18, 2003. Those members in attendance: Michael Mohr, Earlene Plavchak, Pat Rice, and Charles Weinkauf, thereby establishing a quorum. Department of Community Services Staff in attendance: Department Director Michael Hollibaugh and Planning Administrator Laurence Lillig. John Molitor and Judy Hester, Legal Counsel, were also present. li. WTF Sprint Spectrum (A- 111 -01) Board to consider proposed Consent Decree to resolve Case No. IP 02 -1133 C T/K before the U.S. District Court for the Southern District of Indiana, contesting the Director's August 23, 2002, decision to revoke Improvement Location Permit No. 627.01b to install a wireless telecommunications antenna on an existing HAM radio tower; the Board's June 24, 2002, decision to grant an appeal (Docket No. A- 97 -01) of the issuance of the Improvement Location Permit; and the Board's July 22, 2002, decision to deny Sprint's appeal of the revocation of the Permit. The site is located at 1388 Queen's Way. The site is zoned S -1 /Residence Very Low Density. Legal Report was given by Mr. Molitor. This meeting was a continuation of the meeting last week, when the Board approved a motion to settle the litigation brought by Sprint Spectrum regarding the tower in the Queens Manor neighborhood. The Board's approval of the Settlement Agreement was conditioned upon Sprint agreeing to construct the tower so that it looked like a naturally occurring object of some sort, such as a tree. Mr. Mohr stated it was his understanding that the Board approved the settlement based upon the Board's acceptance of an acceptable, not particularly looking like a pine tree, but accepting some design that was presented. Mr. Molitor stated that was correct, that it would be some sort of object that would be natural looking and the Board would review it again. Sprint has not presented any options to the Board, but four or five different structures have been found. Pictures were shown of the monopine, which is a tower that looks like a pine tree. Mr. Mohr questioned what the area looked like where the tower would be located. Page 1 Carmel/Clay Advisory Board of Zoning Appeals February 18, 2003 Page 2 of 4 Mrs. Hester shared that the tower would be located along a line of pine trees on Ditch Road and nine mature trees will be placed around it, to camouflage it. She did not know the exact size of the mature trees. Mr. Molitor stated the existing woods, in that area, are not of the magnitude of the monopine. The second picture shown was the lightning tree tower. It is made to emulate a tree that has been struck by lightning and killed by a lightning strike and left in the landscape. Mr. Hollibaugh stated that the lightning tree was probably close in height to the existing pine trees, but would probably not be acceptable to Sprint because of the height that Sprints wants. Mrs. Rice had assumed that Sprint would be involved in this presentation of designs. Mr. Molitor stated that the Court had instructed the Board to tell Sprint what will be acceptable. The Board has the option to approve any of these options, give Sprint three or four types that would be approved, and then let Sprint make a choice of which one they prefer. The next picture shown was a brown slim line monopole. Another one was similar, but a lighter brown slim line. It would look more like a utility pole. The final picture was also a slim line, with a more metallic appearance. These types of poles are being used in a number of communities. In a couple of cases, Sprint had proposed the monopine type and Boards in California and the East Coast had approved them. Discussion followed on the five different examples. Mr. Weinkauf was opposed to a commercial use in a residential area. Mrs. Rice stated that due to the ambiguity of the ordinance and the word "tower the issue comes down to a loophole that was left in the ordinance that opened the door for where the Board is now. The Plan Commission is in the process of going through the definitions and that will not be left out. Mr. Mohr felt that what goes up there is something the Board chooses, not subject to approval. Public hearing was not held, but neighbors in attendance were asked if they had ever seen any of these proposed tower types and which one they preferred. The Board's decision would not be affected. John Flannigan, 11100 Queens Way Circle, President of the Queens Manor Neighborhood Association. He did not like any of the five shown. He favored the one he had submitted in a letter to the Board today. He distributed extra copies. Rick Roethke, 11271 Crooked Stick Lane, west of the subject property. He did not appreciate any of them. Karen Roethke, 11271 Crooked Stock Lane. She found all unacceptable. Page 2 Carmel/Clay Advisory Board of Zoning Appeals February 18, 2003 Page 3 of 4 Mrs. Plavchak stated she had seen one in an Atlanta suburb in a wooded area. At first glance, she saw trees and then this one tree that was bigger than everything else. After walking away, she realized it was probably a cell tower. Discussion followed again about the various towers. One of these might be better than the ham radio antenna that is there today. A break was taken while Legal Counsel checked the agreement to see if the tower could remain if it was no longer used as a ham radio antenna. Mr. Molitor stated that the way the agreement is written, if either use is discontinued, the other use could remain. Once it is agreed to, Sprint cannot make material alterations (i.e. color, height, etc.). The Board would be agreeing it has two uses and is a non conforming tower. The Board has attempted to maintain and made the motion to dismiss based on the notion that even though it looks like a tower, it is not a tower for the purposes of the ordinance. It is only a ham radio station. The Board previously ruled it couldn't be converted to commercial use. Unfortunately, Sprint has come back and made arguments primarily based upon the Federal law. This has led the Board to believe it may be in the best interest to negotiate a settlement. It is the responsibility of the landowner or user to remove the tower if it no longer has any use. This non conforming ham radio antenna is called a tower by Sprint by using our ordinance. Under our ordinance, a tower is a tower, and our ordinance promotes the nonproliferation of towers. So if there is an existing tower, from their point of view, anywhere in the community, they should be able to collocate on that tower. That is consistent with the Federal Law. Under our ordinance, tower is defined as "a ground or roof mounted pole, spire, structure or combination thereof, taller than fifteen feet including supporting lines, cables, wires, braces, and masts, intended primarily for the purpose of mounting an antenna, a meteorological device or other similar apparatus above grade." The "other similar apparatus above grade" is the part causing the trouble. The ordinance definition of antenna does exclude ham radio antennae. The Federal statue is vague, but it does have the intent to provide wide availability of cellular service throughout the country. So it is difficult for any community to maintain a regulation that prevents towers or services from going into certain parts of the community. Mr. Weinkauf stated that he had received a "for your information" phone call from Michael Browning, who is the President of Crooked Stick Golf Course. Mr. Browning informed him that the cellular tower that is proposed to be constructed at Crooked Stick near the maintenance facility, is basically a "done deal" to be located on their property. They are very close to signing the papers and at this point in time there is room for another collocation on that tower. So, from a Federal Government standpoint, there is another location within several blocks of the Queens Way residential location that is available for Sprint to use. Mr. Hollibaugh said that the Department is aware of this tower, but nothing has been filed. That would be an application before the Board with Public Hearing and public input. Mr. Molitor stated that Sprint attorneys have stated that the Crooked Stick tower does not meet their needs. Mrs. Rice stated it seemed that Sprint had not exhausted all their possibilities and wondered if the Court would see it that way. Page 3 Carmel/Clay Advisory Board of Zoning Appeals February 18, 2003 Page 4 of 4 Mr. Molitor stated that argument could be pursued with the Court. The Board is required by the Court to tell Sprint today which ones, if any, the Board is willing to approve. Then Sprint must report back to the Court by next Tuesday, February 25 if they agree. If the Board does not approve any of these, the response will be filed and the Court will be asked to grant a motion to dismiss. If it is not dismissed, then it will go to trial and we will make the case that Sprint has alternatives for this site. If nothing is presented that is satisfactory to the Board, then the settlement is rejected. Mrs. Rice moved to approve the selection of illustrations 1 (slim line monopole) and 96 (monopine shared by Mr. Flannigan), with Sprint using the one most acceptable to the neighborhood. The motion was seconded by Mrs. Plavchak. Discussion followed regarding the two illustrations. Mrs. Rice amended her motion to reflect only illustration 96 with input from the Queens Way and Crooked Stick neighborhood associations for the design of the ham radio antenna for the size of branches, density, etc. The amendment was seconded by Mrs. Plavchak. The vote was NO DECISION 2 -2, with Mr. Mohr and Mr. Weinkauf casting the opposing votes. Mr. Molitor will report back to the Court that the Board was unable to bring forth agreement on the settlement. J. Public Hearin 1j. There were no Public Hearings on the February 18, 2003, agenda of the Board. K. Old Business lk. There was no Old Business on the February 18, 2003, agenda of the Board of Zoning Appeals. L. New Business 1L. There was no New Business on the February 18, 2003, agenda of the Board of Zoning Appeals. M. Adiourn Mrs. Plavchak moved to adjourn. The motion was seconded by Mrs. Rice and APPROVED 4 -0. The meeting was adjourned at 2:40 PM. Michael Mohr, President Connie Tingley, Secretary Page 4