Proposal: T-Mobile Cell Tower at North Ogden Junior High School

STAFF REPORT

Proposal: T-Mobile Cell Tower at North Ogden Junior High School

This proposal has been presented to the Planning Commission previously and a Conditional Use Permit was granted for a cellular tower at this location. The minutes follow for your review:

JANUARY 21, 2009 PLANNING COMMISSION MEETING MINUTES

Public Hearing regarding a Cellular Tower to be located at North Ogden Junior High School.

Craig Barker introduced himself to the visitors and referred to the staff report. Surrounding property owners have been notified regarding this public hearing. The purpose of the hearing is to get information. Public outcry is not considered to be a reason to not approve a proposal if it fits under the zoning ordinances. People don’t generally desire to have these towers in their neighborhood. Towers have some Federal protections because they are part of the communication network with the country, state and city. The proposed site is at the North Ogden Junior High in the southeast corner of the parking lot on the southern end of the school property. We have a regulation that says that no tower can be closer than 300’ to the closest residence. This means that there is quite a bit of area in our city that towers can no longer be located. The areas that meet this requirement are schools, parks and undeveloped lands. That 300’ makes some difference to people and their attitude toward something rather than being right in the local neighborhood. The height dimension the applicant shows has been reduced from 100’ to 90’. There will be a small area there that will be fenced in with a chain link fence. The Planning Commission may decide that is inadequate. The neighbors may say that they would prefer something else around the bottom. We could also ask if it could be put on the school. Would that be less intrusive? Staff took some pictures of the school site and a tower site in Ogden Canyon. We do require our towers to be co locatable so they may be shared once they go up. We gave the Planning Commission some information on stealth towers. There are many different ways that these towers are put into communities and some are not visible. In our city they are all monopole type. Legal Counsel will not be here tonight to answer questions or provide guidance if necessary. The purpose of this Public Hearing is to take information from the public and listen to their concerns. The Planning Commission is not required to respond to comments. Public input could be taken back to the next meeting for consideration.

Commissioner Crittenden moved to open the Public Hearing. Commissioner Bingham seconded. Voting was unanimous in favor of the motion. The Public Hearing opened at 6:15pm.

Charles Lindquist, 646 E 2850 N, asked what the pole will look like. Chairman Barker stated that has not been decided yet.

Dan Christiansen, 657 E 2900 N, stated that the T-Mobile rep said that the carriers prefer the towers to be tall so that other carriers can collocate. If it is not tall enough and is not in a place where the 100’ can be placed we will have carriers wanting more poles in other locations. He feels that the landscaping doesn’t do much. There are also concerns about medical problems from living near these towers. Since there is already a tower at the park are we obligated to give them the site that they are asking for? It would serve their purpose right now. Why don’t we allow it where it makes the most sense now? Maybe a better site will present itself as houses are built up the hill. He would rather see it where there are no homes. A big ugly cell phone tower is going to detract from their property value and aesthetics. They built in an area knowing what was there.

Robert Mason, 669 E 2900 N, stated that Chapter 11 of the code states that the purpose is to protect against potential adverse impacts of these towers. There are other places in the City where the tower could be located that would have less impact on residential areas. Telecommunication towers are not to be treated or regulated as essential or emergency services. They are not allowed the same allowances as the gas, water or electric companies. Looking at the map, a 90’ tower is not going to be acceptable. At the corner of the parking lot, going straight east is cemetery land. Is that a residential area? He questions the distance from the nearest residential area. He imagines that the original variance or waiver that allowed the school to be built there did not include extending that again for an industrial site in a residential area. He compared this request to asking for an agricultural zone on his property to raise pigs on that land. That would probably not get approved. They are required 3x the height of the tower in all directions. It is unlikely that the tower would fall over but it could, and there are radiation hazards to people in the neighborhood. This site is directly over the new storm drain that was put in there. It might be useful to remember who is sovereign here. The federal, state and city governments are not sovereign. The clear majority of people here tonight are not in favor of this site for the tower.

Helen Mason, 669 E 2900 N, stated that her parents are buried in this cemetery. Out of respect of the people who are buried there she feels that the families should be notified.

Nancy Beal, 586 E 2850 N, asked if the City contacted the families of the people in the cemetery. She thinks that they should be notified of what is going to be put in there. The cemetery is getting the brunt of what it looks like. It is interesting that there is a berm area; the school didn’t want it close to them. They put it in a corner where they won’t notice it. We need to be sure that whoever gets the monetary benefit takes the brunt of the problem. Near the shop area of the school there is a “v” that would be a better location than the one proposed. She feels that the school is not going to be monitoring it. If this tower is put in and they want to put in a taller tower what happens then? She thinks these things need to be looked at harder than it has been.

Jared White, T-Mobile, 121 Election Rd, Draper, UT. Mr. White stated that the comments are the same at every Public Hearing and he takes a very non-biased approach. There are federal regulations that protect cell towers. Before they pick a site they review the ordinance and see how to make it work within those guidelines. The ordinance exists and is very specific and they have complied in every way. They are at 90’ and meet the setbacks. The only reason the setback is there is to mitigate the impact to residents. There is an amount of RF frequency that is considered potentially harmful; they are at .10% of allowable exposure at maximum output. It is impossible to completely eliminate the impact. All the other sites were looked at and they do not fulfill the immediate need. There comes a point when they have to go where they have to go. The other sites will not work. The towers work by line of sight. The array will be a cluster antenna to minimize the distance from the pole. It will go from 8’ down to 18-24”. If there were other places that this could go it would go there. This tower serves the entire city of North Ogden so the comment that the majority of residents don’t want it is not accurate. It would be very difficult for other companies to explain why they couldn’t collocate on this tower. Carriers could be located at 80’ and 70’.

Nancy Beal, 586 E 2850 N, stated that the elevation change from the proposed site to the “v” near the school is 15’. That is a 105’ tower.

Mary Christiansen, 652 E 2900 N, asked if the tower is inevitable and will be in their line of site, could they try to minimize the visual effect of it.

Dan Christiansen, 652 E 2900 N, asked if other companies would collocate on it would they be held to the smaller array as well. Maybe the ideal site for the city is in the park where there is already a tower. Is the City bound to give them their ideal site? Craig Barker stated that those answers would need to come from legal counsel.

Commissioner Bott moved to close the Public Hearing. Commissioner Brown seconded. Voting was unanimous in favor of them motion. The Public Hearing closed at 6:58pm.

Consideration and Site Plan Approval for a Cellular Tower to be located at North Ogden Junior High School.

Craig Barker stated that the Planning Commission is not required to make a decision tonight. It could be put off to another meeting.

Commissioner Bott stated that he is not sure he understands the maps totally. Are there experts that know more about this that understand this? Craig stated that there are but getting them in here is another question.

Jarod White stated that he can answer most questions.

Commissioner Bott stated he does not have the expertise to answer whether this location is in fact the best.

Jarod referred to the coverage maps. There was general discussion regarding the proposed coverage if the tower is located at the proposed school site and the reasons that T-Mobile desires to build this tower. Jarod stated that at the first meeting he asked for a list of sites to look at so that he would not have to keep coming back. He did that and found that those sites will not meet their needs.

Chairman Barker asked, on a flat plain, what is a good distance between towers so they can offload? Jarod stated 1 ½ to 2 miles. If they were just trying to offload it would be different than if offloading and creating coverage. Mr. White explained that every lease states that upon abandonment the site will be returned to its original condition.

There was more discussion regarding the subdivisions up on the hill and the future need for more towers on the north end of the city. Jarod stated that he will take a look at the water tank site at Coldwater Creek. Commissioner Bingham stated that he would like to see that. He is not sure what conditions the Planning Commission could put for construction at that site. A shorter pole, flag pole style with an 18-24” diameter and moved to the north behind the school. Those are the conditions that he is thinking of at that site. Jarod stated that the height is something that could be done. Commissioner Bingham explained a dealing that he had with T-Mobile regarding a flagpole type antenna that was 18-24”. If that would provide coverage to the center of the city that is what he would lean toward. Jarod explained how antennas work and why a thinner antenna at that site would not work. Jarod stated that it would have to be a 36” pole tapered to 12” at the top.

Jarod stated that he has already talked to the school district and they refused to allow a tower closer to the school. They feel that it is more of a hazard to the students to have it closer to the building.

Commissioner Bingham asked if they would consider a brick enclosure. Jarod stated that they have proposed chain link with slats. They don’t like to do brick enclosures because they are expensive and nobody really cares. They will do vinyl fencing though.

Commissioner Bingham asked Staff to approach the School Principal and Facilities Director to talk about the site in general. Craig Barker stated that he would contact Drew Wilson. Gary Kerr will talk with him as well.

Craig asked if the pole could be placed on the school. Jarod stated that it could be put there but the impact is the same.

Commissioner Bingham recommended that the shop area be looked at.

Craig recommended the Planning Commission give Jarod a list of items to review.

The Commissioners asked that Mr. White look at the Rice Creek reservoir site and bring in photos of different towers.

Commissioner Catanzaro moved to table this item until February 18, 2009. Commissioner Brown seconded. Voting was unanimous in favor of the motion.

February 18, 2009 planning commission meeting minutes

Consideration and Site Plan approval for a Cellular Tower to be located at North Ogden Junior High School.

Craig explained that this has been on the agenda before and a public hearing has been held. Staff has contacted school district personnel and they feel that this is the least dangerous place at the school. The question remains what powers the Planning Commission has to limit this request. It was previously suggested that a block or brick fence be installed rather than a chain link fence to limit visibility of the interior. Legal Counsel is here tonight.

Commissioner Crittenden asked whether we have received information about the Rice Creek location.

Jared White, 121 Election Rd., Draper, UT, presented maps of simulated coverage at the Rice Creek location, the proposed location at the Junior High and current coverage. He reviewed the maps for the Commissioners and explained how these towers work together. He explained that the Rice Creek location would not meet their needs for coverage due to topography. Mr. White explained that these are the maps that they use for litigations with other cities. There are a lot of things that affect coverage at each location.

Commissioner Quinney asked what it will look like ten years down the road. Jared stated that every lease they have gives them a termination right, which stipulates that they will remove the towers. If demand continues to increase they will need more towers.

Commissioner Quinney asked if these towers are always 360 degrees. Jared stated that they probably would not do a 360 degree tower at the Rice Creek site, rather they would do a two sector tower.

Bruce Evans stated that the Federal Government takes the position that if they approve a tower on Federal land they want to make sure that the tower becomes available to other carriers. The future of cellular technology is that the new technology will be overhead. This includes satellites and high altitude balloons that operate in the stratosphere, are solar powered and can do communications for a much lower cost. Over the next ten years we may see less and less reliance on towers. The advantage of overhead systems is that they are shooting through the less dense atmosphere. They also require less power and have broader coverage. Cellular towers as a primary means of operating communication devices may have a limited lifespan. These towers may have a 10 to 20 year lifespan because of where the technology will go.

Jared stated that there are very different ideas but from a business prospective it’s about the bottom line.

Commissioner Catanzaro asked if the government has made any rulings regarding cell towers as they have RLUPA.

Jared stated that the telecomm act gives them very specific rights. Cities cannot write an ordinance to prohibit cell towers. Bruce Evans stated that is true.

Jared also says the Cities cannot dictate where the towers go. Ordinances can be written with requirements but cannot dictate the location.

Commissioner Catanzaro asked if the City can allow them in commercial zones only. Bruce Evans stated that is legitimate. The City can direct them to locations that are more compatible. Jared stated that the City may be able to write the ordinance that way but what would happen is that eventually the cellular companies would sue the city.

Bruce Evans stated that the solution, and what we have done, is to have a cell tower be an authorized conditional use in certain zones. Many schools are putting them in adjacent to the school. There is an attractive nuisance element to this as kids will climb stuff if it is there. He is not sure what the safety issues are that people are concerned about. The towers are not going to fall over. They are very safe.

There was more discussion regarding different locations on the school property and the reasons that the tower cannot go in a different location.

Bruce Evans explained that legitimate city issues include things like the slope and grade not interfere with drainage. He recognizes the difficult position the Commission is in. As the Land Use Authority the City faces the potential for liability for decisions made. If the school district has made a decision as the land owner and responsible party for those children and we oppose that and impose restrictions that changed that and a court was to find that those safety concerns were legitimate we are liable. We do have insurance to cover us for some. The fact that neighbors don’t like it is not a legal consideration. When we have a conforming application for a legitimate use on a piece of ground we need to have a compelling reason in order to deny.

Bruce Evans stated that we had this discussion before about whether we must permit it there. The reality is that we have to be able to provide reasonable coverage so Mr. White has to be allowed to put it somewhere. What other places would be better? We can do things about the appearance of the tower. Do we want it painted a certain color? Do we want a certain design? You can make concessions that may help those residents feel better about it. His personal feeling is that this is a good place for this tower.