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MINNESOTA TOWERS, INC. FOR AT&T MOBILITY AND EDWARD J. ERICKSON
FOR PROPERTY AT APPROXIMATELY:
5858 ARNOLD ROAD DULUTH MN 55803
AMENDMENT TO CONDITIONAL USE PERMIT CONDITIONS
PUBLIC HEARING MINUTES
MAY 19, 2009
The public hearing was called to order at 6:00 p.m. by chairman of the Planning and Zoning Commission Larry Birnbaum. Present at the hearing were commission members Bob Whitmyer, Herb Dallum, Biron Wipson, Kathy Meyer and Steve Kossett; supervisors Jeff Bachke, John Werner and Greg Andrews; clerk Patti Alander; applicant Shane Begley (representing Minnesota Towers, Inc.) and Edward Erickson; five township residents. Absent was deputy clerk Cammy Hansen. Herb Dallum recused himself from the proceedings as he is a neighbor in close proximity to the site being discussed.
Public notice for this hearing was posted on May 1, 2009 and published in the Duluth News Tribune on May 6, 2009 and May 13, 2009 (see notice attached.)
Chairman Birnbaum went through the rules for conducting the public hearing (copy of agenda including rules is attached) and read the purpose of the hearing into the record: The first purpose of this hearing is a request to amend Condition #9 which states: Permit will be null and void upon sale of property. The proposed new language for Condition #9 is: Any new or change of lessee or lessor must be reviewed and approved by the planning commission for compliance to the original conditional use permit. The second purpose of this hearing is to add Condition #10: Plans must be on file at the town office for the orderly dismantling of the tower at such time as it is no longer in service or is deemed obsolete. These plans must be on file prior to a building permit for the tower is issued.
Chairman Birnbaum asked the clerk if the town has received any phone calls or letters regarding the application. Clerk Alander read the following email received from resident William Oswald into the record:
My name is William Oswald, and I live at 5825 Arnold Road. I attended the first meeting regarding the granting or denying the Conditional Use Permit (CUP) for the cell tower on Arnold Road, and spoke against the issuance of the permit, and I am still against the erecting of a 300 foot cell tower in what should be a residential area of Rice Lake Township! I am not able to attend tonight's meeting. I ask that this gets read at tonight's meeting, and put on the record.
At the first meeting, where the CUP was approved, every concession asked for by myself, and others who were attending who were against the granting of the CUP was denied. I personally asked for no cell tower, I asked that if there were to be a cell tower, could it be 100 feet, instead of 300 feet. I asked for no new driveway, as the owner of the property already has a way to access the site without building a new driveway, I asked that a gate be put up if a new driveway were to be built in order to not allow vagrants back there as a safety issue, and as garbage collection site, as these things happen when driveways exist that lead to nowhere. Every one of these requests was denied by the members of the commission that night. The only concession you did not make was the one asked for by the tower builder, which was to delete your standard provision in your approved CUPS that if the current owner of the property is sold, the new owner of the leased site would have to reapply for another CUP, as the old one would no longer be viable. I now believe the reason for tonight's meeting/vote is to waive that provision, as it appears to have been waived for another CUP approved for a cell tower at the Sunset property.
I would like to know, for the record, what changed between the first meeting, and tonight's meeting regarding this issue, and wonder and would like to know if tonight's meeting is solely for the purpose of being consistent with the Sunset CUP, or if you plan on re‑voting on every CUP you have ever approved with the provision that it must be re‑applied for if the property changes hands, as I understood from that first meeting for this tower site, you have included that provision on every single CUP Rice Lake has ever approved. I am now wondering why you are even considering changing this provision?
It appears that if you do not approve the amendment tonight, it may be that the cell tower will not be built. I remember at the first meeting the people for the granting of the CUP spoke about the benefits of cell coverage due to 911, emergencies, etc., so people would be provided with better cell coverage. While the board may think this tower is about the needs of the township, my assumption is this tower building is about money, money for the property owner through lease payments received, money for the tower builder, because that is what he does to earn his living, and money for AT&T, who will sell space and time on the tower.
Thank you for your time, and hopefully answers to the questions/concerns I raise with this email, and I want to again, let you all know I am still totally against the tower site, the 300 foot height, the new driveway area, the no gate for the new driveway entrance, and now I am totally against your removing your standard language of all your CUPS approved in the past, except the new one at the Sunset site, which is in a commercial area, not residential.
I am of the opinion a commercial site such as the Sunset property might become more valuable to the property owner to have a cell tower located on it to prospective buyers, but I do not believe our homesteads, located miles away from any commercial type of property, get the same benefit.
William Oswald
5825 Arnold Road
TESTIMONY IN SUPPORT OF THE CONDITIONAL USE PERMIT AMENDMENT AND ADDITIONAL CONDITION: Shane Begley, on behalf of Minnesota Towers, Inc. and Edward Erickson, 14114 S. Country Circle, Gordon WI 54838: Mr. Begley explained that in communities in our area it is common for CUPs to be reviewed upon change of ownership, but not nullified.
Chairman Birnbaum asked Shane if it is feasible to put a cell antenna on our existing water tower. Mr. Begley said he did not know about that; he is here tonight to discuss the proposed tower on the Arnold Road property. He did state that AT&T would have very likely done extensive research prior to deciding on a location and the location is usually determined based on customer complaints for poor coverage. Larry asked what type of tower this would be; Shane assumes it is a guyed tower due to the 300 foot height.
Rollie Bourdage, 5812 Arnold Road, Duluth MN 55803: Told the commission that he is in support of the tower. His daughter was at his home this weekend and had no coverage on her AT&T cell phone. He believes the tower is important not only for communication purposes, but for safety purposes as well.
TESTIMONY IN OPPOSITION TO THE CONDITIONAL USE PERMIT AMENDMENT AND ADDITIONAL CONDITION: Martha Oswald, 5825 Arnold Road, Duluth MN 55803: Martha asked the commission to explain the difference between the existing condition #9 and the proposed condition #9 and also made the point that she has no issue with the proposed new condition regarding the future dismantling of the tower. Clerk Alander explained that the original condition would be null and void upon change of ownership of the tower and/or real property; the proposed new language is “softer” in that it allows for a change in ownership as long as the conditions of the CUP are being met. Shane attempted to explain using the analogy that if this condition were to be put on a house, the homeowner could not sell his home unless the commission would approve it. The homeowner would have entered into a contract with a tower company that he would no longer be in compliance with and may very well result in litigation. Martha told the commission that she has been opposed to this tower from the beginning and is disappointed that none of the concessions asked for by the residents were granted, but that Condition #9 that the tower company didn’t like is being asked to be changed. Her wish is that the commission would listen to her and her husband’s concerns and uphold the original language of Condition #9. She also quoted part of the Rice Lake Township Mission Statement: “As a friendly, quiet, family-oriented community, the citizens of the Township appreciate and respect the needs of their neighbors….. The Township will work together with its residents to sustain moderate commercial, residential and recreational growth, while making sure not to alter the existing character of the Town.”
Marge Kaufer, 5859 Arnold Road, Duluth MN 55803: Asked the question: if the change of Condition #9 goes through, would a new owner of the property be required to comply with the contract between the current owner, Ed Erickson and the Tower company? Or does the new owner have the right to say if the tower stays or goes? Shane answered that the contract is with the landowner; the lease would transfer to the new owner. Discussion between Ms. Kaufer and Mr. Begley continued regarding the language of the CUP. She also asked why an existing Verizon tower couldn’t be “piggy backed” onto for AT&T users as her sister has Verizon and has great coverage in the area. She also stated that the cell tower at the Sunset works because it is commercial property. Again she asked why AT&T couldn’t piggyback onto a Verizon cell tower.
Chairman Birnbaum asked commission members if they had any questions or comments. Larry reminded the audience that there is a federal mandate that leaves very little “wiggle room” regarding the placement of cell towers. He also stated he does not know where the Verizon tower is located or what the quality of coverage in the area is. He stated that he moved to Rice Lake for the reasons that are quoted in the mission statement and that were it not for the federal mandate, he is not sure that this tower would have been approved in the first place. Mrs. Kaufer stated that although she knows about the federal mandate, she wonders if this is the best place for the tower and that there is coverage, although it may not be 100% of the time. Steve brought up the fact that we have previously turned down cell towers that were in residential areas and thinks the condition should stay.
With no further questions, Larry read through the conditions, including the proposed change and addition:
1. Two parking spaces shall be provided.
- There must be an agreement to use the private road to access the property.
- Any equipment shelter which may go over 450 square feet will need an additional Conditional Use Permit prior to acquiring building permits.
- Minnesota Towers needs to submit the 30 foot access easement and 15 foot utility easement for our close out documentation prior to issuing a conditional use permit.
- The access road and the site need to be properly drained and all storm water permits, wetland delineations, fill permits need to be applied for if necessary prior to construction.
- A geotechnical report needs to be submitted for the site prior to construction for soil bearing capacities for the structures by a licensed testing agency.
- Annual review
8. Proof of ownership of property provided prior to activation of permit.
9. Any new or change of lessee or lessor must be reviewed and approved by the planning commission for compliance to the original conditional use permit.
10. Plans must be on file at the town office for the orderly dismantling of the tower at such time as it is no longer in service or is deemed obsolete. These plans must be on file prior to a building permit for the tower is issued.
Chairman Birnbaum called for a motion to approve the amended conditions. Biron made a motion to approve the amended conditions, Bob seconded the motion. Bob asked to hear Condition #10 again and asked how we would determine when the tower was no longer in service or obsolete. Clerk Alander commented that adding this condition is the result of a previous problem the town had with the dismantling of a tower and that it should not be the responsibility of the land owner or the town to do so. Shane stated that many communities are incorporating that language into their ordinance. It was determined that 12 months of non-use is generally when a tower becomes “out of service or obsolete.”
Having no further discussion, chairman Birnbaum calls for a roll call vote:
Bob Whitmyer: approve
Biron Wipson: approve
Larry Birnbaum: reject
Kathy Meyer: approve
Steve Kossett: reject
Motion is approved.
Motion to adjourn made by Bob and seconded by Biron. Meeting adjourned at 7:40 p.m.
Respectfully submitted,
__________________________________ ______________________________________
Camille S. Hansen, deputy clerk Larry Birnbaum, Chairman
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