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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
CONDITIONAL USE PERMIT APPLICATION
PUBLIC HEARING MINUTES
OCTOBER 22, 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 Herb Dallum, Biron Wipson, and Kathy Meyer; supervisors Jeff Bachke and Greg Andrews; clerk Patti Alander and deputy clerk Cammy Hansen; zoning administrator Marty Paavola; applicant Shane Begley (representing Minnesota Towers, Inc.) and Edward Erickson; and four township residents. Absent were commission members Steve Kossett and Robert Whitmyer. 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 October 8, 2009 and published in the Duluth News Tribune on October 12, 2009 and October 19, 2009 (see notice attached.)
Chairman Birnbaum went over the rules for conducting the public hearing (copy of agenda including rules is attached.)
ZONING ADMINISTRATOR’S REPORT: Marty read the following report into the record:
This is a public hearing held by the Planning Commission to consider a conditional use permit application of Minnesota Towers, Inc. of 14114 S. Country Circle, Gordon WI 54838, AT&T Mobility and Edward Erickson. The application is to construct a 190 foot communication tower with antenna located approximately at 5858 Arnold Road.
The property is zoned MUNS-4 (Multiple Use Non Shoreland.) Ordinance #22, Article VI, Performance and Administrative Standard, Section 4, Utility Structures, allows utility structures including cellular phone towers in all zone districts on lots as small as 20,000 square feet providing that the standards A-F can be met. A conditional use permit is required because item B cannot be met and not all property owners whose parcel is adjacent to the parcel containing the tower have agreed to the proposal. The Planning Commission also needs to review the remainder of items A-F for compliance of the following standards:
A. Towers shall be outside of significant migratory bird flight paths.
B. Towers shall not be closer than twice the tower height to the nearest structure off the property and all owners whose property is adjacent to the parcel containing the tower shall agree to the proposal. The tower itself shall be set in a location a distance from property lines equal to the tower height.
C. Any structure does not exceed 450 square feet in area.
D. Two parking spaces shall be provided.
E. If the site is on a private road there must be an agreement to use such a road from the appropriate party.
F. All appropriate government permits and authorizations are followed.
Minnesota Towers has submitted additional information at our request which needs to be reviewed and approved by the Planning Commission. They are:
1. Survey showing closest building to proposed tower site
2. Final FAA determination
3. Letter concerning migratory birth path
4. Text of Telecom Act
5. Study on effect of towers on migratory birds
The proposed equipment shelter is 11.5 x 20 feet which equals 230 square feet and is under the 450 square feet allowed. The plan shows an additional three future proposed equipment shelters for future carriers to use the tower. Any equipment shelters which may go over 450 square feet will need another conditional use permit prior to acquiring building permits.
Minnesota Towers needs to submit the access easement and 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 and 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.
I now leave it up to the Planning Commission to review the application request for Minnesota Towers to install a 190 foot communication tower on property approximately located at 5858 Arnold Road.
APPLICANT: Shane Begley explained that this application is being brought back to the commission due to wetlands issues that were discovered at the previously approved site. The new application will move the proposed tower site approximately 500 feet west in order to move it out of the wetland area. Also, the utility easements will be imposed only on one parcel of land instead of the two parcels on the previously approved site, also a result of wetland issues. Also, the proposed tower has been downsized from a 300 foot guyed tower to a 190 foot monopole. The size of the tower was a concern of neighbors in the prior public hearings, so this reduction will address that concern. Also, no guyed wires will be needed nor will the tower need to be lit. Biron asked how far off the Arnold Road the new tower would be. Shane answered that it is approximately 600 feet. Kathy asked what the heights of the trees in that area are. Shane does not recall exactly, but estimates them to be around 20 feet. Shane stated that there are photo simulations in the file that show what the pole would look like from various locations. The commission members reviewed the photo simulations.
Larry asked if the Town has received and phone calls, letters or emails either in support or oppositions to the application. Cammy responded that she had two requests for information regarding the application and sent the requested information to both parties. Also, an email was received by the Town this afternoon that Cammy read into the record:
My name is Martha Oswald and I live at 5825 Arnold Road. Our property is directly across the road from where the proposed cell tower will be located. It is my understanding that because the cell tower height is being reduced and relocated, this hearing is required.
I would like to take this opportunity to request that the board vote NO on allowing the location of the cell tower to change. It is my understanding that the cell tower will be moving 500 feet closer to Arnold Road, which then means closer to our house. Please request the applicant to explain why the move is needed just because the height of the cell tower has changed.
Currently, AT&T Mobility is on the Duluth city council agenda for 2 cell towers in the city limits of Duluth. One permit is for a 180 foot tall monopole located at 78th Ave E and Hwy 61. The Duluth planning commission had a 5-5 vote on this special use permit. The issue before that planning commission was to consider was the stipulation that required the tower “to blend into the proposed site so as to minimize its visual impact on the surround area, where reasonably possible”. While this is a requirement of Duluth’s planning and zoning code, this requirement is not an unreasonable one for Rice Lake Township to consider. I can’t believe a cell tower located closer to Arnold Road would blend to minimize its visual impact on the surrounding area - which is my house and the other houses on Arnold Road. While I am totally against a cell tower going up directly across from our house, at least require the applicant to leave the cell tower where it was originally proposed.
This commission’s mission is to consider this special use permit and consider the application in regards to the planning ordinance for the township, AND to consider the impact on the neighborhood. While we adamantly oppose the cell tower, at least be willing to put some restrictions on the application. Please consider and listen to the residents of the township who have concerns, instead of agreeing to everything AT & T Mobility is telling you. We moved to Rice Lake Township 20 years ago because of the quality of life that this township had to offer. Maybe it is time to start listening to your citizens who live with the decisions you make instead of a large corporation who has no vested interest in Rice Lake Township other than the financial gain it can bring to them.
Thank you for your time.
TESTIMONY IN SUPPORT OF APPLICATION: Rollie Bourdage, 5812 Arnold Road: This tower will be adjacent to his property. There will be no lights on it and he has no problem with it being there. He believes that the area is in need of this tower in order to utilize technologies such as the internet.
TESTIMONY IN OPPOSITION OF APPLICATION: Bill Oswald, 5825 Arnold Road: Asked if the old Conditional Use Permit that was previously approved will now be void or will it remain in effect, or are we amending the old one. Cammy responded that we are not sure of the county’s procedure to either amend or void the prior CUP. Patti added that she does not believe we can amend it as has already been amended once. We want to make it clear that we are not allowing two towers on the property. Bill asked if this is a new application and the old application is a dead issue. Shane responded that he requested an amendment to the old CUP but was told by Marty that a new application is required. Shane stated that the previous CUP did not specify the specific location of the tower, only the parcel of land and therefore he did not believe a new application should be required. Bill then asked who’s name the CUP application is in and is there a valid lease between the parties. Patti responded that the application is from Minnesota Towers, AT&T Mobility and Edward Erickson. Shane stated that he believes a copy of the lease was included with the original application. Patti also pointed out that that proof of ownership is one of the conditions that are required to be met. Bill stated that moving the tower closer to Arnold Road is not desirable to him. If there is to be a tower on the property, he prefers that it be as far from the road as possible.
Bob Kaufer, 5859 Arnold Road: Believes that Rice Lake Township currently has adequate cell phone coverage with Verizon and does not see the need for an additional carrier. He is opposed to this tower.
Larry asked if the commission members have any questions or comments. Biron stated that the previously approved CUP stated that a geotechnical report was required for soil bearing capacities. He made the point that the reason for moving the tower is because the report concluded that the previous site was in a wetland area. Shane confirmed that the proposed site has already been approved for soil bearing capabilities.
Larry asked if anyone who offered testimony has any questions. Rollie pointed out that he just checked his Verizon cell phone and has no bars. He stated that sometimes he has bars at his home.
A motion to close the public testimony portion of the hearing was made by Biron and seconded by Kathy. All vote in favor, motion carried. Public testimony closed at 6:25 p.m.
DISCUSSION BY PLANNING COMMISSION:
FINDINGS OF FACT
1. The use conforms to the land use of comprehensive plan of the Town, if any.
Larry states that according to Marty’s report this use is in compliance. Kathy states that yes, it does. Biron also agrees.
2. The use is compatible with the existing neighborhood.
Kathy said that this a multiple use district and is allowed. Biron states that it is compatible; Kathy agrees. Larry pointed out that the Telecom Act makes it difficult for townships to deny applications for cell towers. He went on to say that a monopole rather than a guyed tower make it more compatible. All agree that this is compatible.
3. The use will not impede the normal and orderly development and improvement in the surrounding area of uses permitted by right in the zone district.
Kathy states that she does not believe it will impede anything as it is set back far enough from both the Arnold and Lismore Roads. Biron and Larry agree.
4. The location and character of the proposed use is considered to be consistent with a desirable pattern of development for the area.
Kathy states that this is a small area on a large piece of property. Biron states that it is technical infrastructure. Larry said it goes back to the Telecom Act. Kathy also said that this part of Township is in need of better cell coverage. Biron agrees. Larry abstains.
5. No Conditional Use Permit shall be granted for a use not listed as a conditional use in the zone district where the land is located.
Kathy states that this use is allowed in this zone district. Biron and Larry both agree.
CONDITIONS:
1. Two parking spaces shall be provided.
2. There must be an agreement to use the private road to access the property.
3. Any equipment shelter which may exceed 450 square feet will need an additional Conditional Use Permit prior to acquiring building permits.
4. 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.
5. 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.
6. 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.
7. 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.
Patti mentioned that when there was public discussion regarding the water tower, some suggested that painting the tower may make it less visible and blend better into the environment. Shane states that the best blending occurs with a galvanized tower. He states that they would be happy to paint it if the commission desires, but he does not recommend it. As a matter of fact, the Duluth Planning Commission also came to the conclusion that the galvanized tower would be the best choice in order to blend into the surroundings.
With no further questions or discussion, Larry calls for a motion to approve or deny the Conditional Use Permit application. Biron makes a motion to approve the Conditional Use Permit for the 190 foot cellular tower. Kathy seconds the motion. All vote in favor; CUP is approved.
A motion to adjourn the hearing was made by Kathy and seconded by Biron. All vote in favor, meeting adjourned at 6:35 p.m.
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