IN THE OFFICE OF ADMINISTRATIVE HEARINGS CASE NUMBER S

Transcription

1 IN THE OFFICE OF ADMINISTRATIVE HEARINGS CASE NUMBER S VERIZON WIRELESS AND THOMAS AND IMOGENE BROWN, TRUSTEES OF THE THOMAS A. AND IMOGENE BROWN TRUST DATED JULY 2, 1984 SECOND ASSESSMENT DISTRICT DATE HEARD: AUGUST 6, 2015 ORDERED BY: DOUGLAS CLARK HOLLMANN ADMINISTRATIVE HEARING OFFICER PLANNER: STERLING SEAY DATE FILED: SEPTEMBER 10, 2015

2 PLEADINGS Verizon Wireless and Thomas and Imogene Brown, as trustees of the Thomas A. and Imogene Brown Trust dated July 2, 1984, the applicants, seeks a special exception ( S) to allow a commercial telecommunications facility in an RLD District on property located along the north side of Sunrise Beach Road, east of Evergreen Road, Crownsville. PUBLIC NOTIFICATION The hearing notice was posted on the County s website in accordance with the County Code. The file contains the certification of mailing to community associations and interested persons. Each person designated in the application as owning land that is located within 175 feet of the property was notified by mail, sent to the address furnished with the application. Harold Bernadzikowski of Network Building & Consulting, LLC, the applicants site acquisition specialist, testified that the subject property was posted for more than 14 days before the hearing. I find and conclude that the requirements of public notice have been satisfied. FINDINGS A hearing was held on August 6, 2015, in which the witnesses were sworn and the following was presented with regard to the proposed relief requested by the applicants. 1

3 The Property The subject property is owned by Imogene and Thomas Brown, as trustees of the Thomas A. and Imogene Brown Trust dated July 2, The property has a street address of 1140 Sunrise Beach Road, Crownsville, Maryland It is identified as Parcel 110 in Block 14 on Tax Map 31 and is zoned RLD Residential Low Density District. The Proposal The applicant is proposing to locate a 140-foot tall telecommunications monopole tower and facility within a 45' x 45' compound on 30.7 acres as shown on the site plan admitted into evidence as County Exhibit 2. This triangular shaped property is improved with a number of structures, including a one-story single-family dwelling, two detached garages and a number of buildings used in conjunction with the agricultural uses on the property. The Anne Arundel County Code The Code provisions that govern commercial telecommunication facilities are found in and in (2) through (12). Furthermore, the applicants must meet the requirements found in , which govern all special exceptions. The Evidence Presented At The Hearing Sterling Seay, a planner with the Office of Planning and Zoning (OPZ), testified that the proposal meets the requirements for a commercial telecommunication facility set forth in of the Code. No variances are 2

4 being requested. The proposed facility also meets the requirements of (2) through (12). The Health Department commented that it has evaluated the onsite sewage disposal and well water supply system and determined that the proposed request does not adversely affect these systems and therefore has no objection. The Development Division reviewed the application and offers no objection noting that a landscape plan in accordance with the Landscape Manual will be required with the building permit. The Department of Recreation and Parks noted that the site is not within nor contiguous to an Anne Arundel County park or trail. However, a portion of the subdivision lies within the Bacon Ridge Branch Greenway, a preservation area designated on the Anne Arundel County Greenways Master Plan. The development is outside of the greenway and on the opposite side of the property from the State natural area. Concerning the general special exception standards prescribed in of the Code, Ms. Seay testified that it is the opinion of OPZ that the proposal will not be detrimental to the public health, safety, or welfare; the facility will be compatible with the appropriate and orderly development of the RLD district; the facility will be no more objectionable with regard to noise, fumes, vibration, or light than other permitted uses; the proposed use would not conflict with existing or programmed public uses; and the applicant has the ability to comply with the requirements of the Landscape Manual. In addition, as evidence of public need, the applicant has indicated that the facility will 3

5 benefit the public welfare by providing necessary and improved wireless telecommunications services in the area. The proposed tower will be located in a wooded area of the lot that will screen the tower from the adjacent property to the east and the road. At 140 feet, the height allowed for two or more providers, the tower exceeds the one provider maximum allowed height of 100 feet. To be eligible for 140 feet in height the applicant must provide evidence of a second provider on the monopole. Based upon the standards set forth in under which a special exception may be granted, Ms. Seay testified that OPZ recommends approval of a special exception to allow a commercial telecommunication facility in an RLD with a height of 140 feet conditioned on proof of two providers. The applicants were represented at the hearing by Steven P. Resnick, Esquire, who presented documentation and testimony from Harold Bernadzikowski, an expert in the field of the construction and permitting of communications towers. A notarized detailed statement by Mr. Bernadzikowski addressing the requirements that must be met for this special exception to be granted was submitted, and the reasons for the height of the tower. The tower will be gray and unlit. The applicant will have two providers at the permit stage. There was no other testimony taken or exhibits received in the matter. The Hearing Officer did not visit the property. 4

6 DECISION The law is settled that a special exception use is a use that the legislative body recognizes as compatible with permitted uses, subject to a public hearing to show compliance with the underlying standards. Schultz v. Pritts, 291 Md. 1, 432 A.2d 1319 (1981); Peoples Council for Baltimore County, et al v. Loyola College in Maryland, 406 Md. 54, 956 A.2d 166 (2008). The evidence shows that the applicants determined that service for its customers in the area of the subject property is inadequate. There is no existing tower the applicants can co-locate on. The applicants also presented testimony that there are no commercially zoned properties within 2,500 feet of the subject property that might provide an alternative site for the antennas the applicants want to install in this area. The witnesses testified that the proposed tower would meet the requirements of the Code. The testimony and documents show that the tower meets the following Code provisions: 1 The tower will be a monopole permanently located on the ground (1). The tower will not exceed the maximum permitted height (3), which in this case will be 140 feet. 1 Subsections that do not apply to the facts of this case have been omitted. 5

7 The evidence shows that the applicants have explained the reasons why it cannot locate the tower on any commercially zoned site within 2,500 feet of the proposed site (4). The evidence shows that the applicants have explained the reasons why it cannot co-locate on any other telecommunication facility (5). The applicants have provided a certification from a registered engineer that the structure will meet the applicable design standards of Article 15 of the Code for wind loads (2). The applicants have provided testimony and an affidavit from a consultant acceptable to the Director of the Department of Inspections and Permits that the facility or the developer s use of the facility will not degrade or interfere with the County s public safety communication systems (3). The monopole will be painted gray, and will be screened and buffered in accordance with the Landscape Manual (5). The evidence shows that the applicants have met each of the elements of and except for the proposal to erect a 140-foot tower in the absence of evidence that the tower will host two providers. The applicant states that it will have a second provider by the time of permitting. In these times of expanding cell phone use, and the need for tower space for antennas, it is likely that a second provider will be found. In addition, the tower is isolated from residential areas and the additional 40 feet will not adversely affect neighboring properties or their owners. 6

8 The applicants also presented evidence that it met the requirements of (1) Public Health, Safety, and Welfare; I find that the proposed use will not be detrimental to the public health, safety, and welfare. The testimony and evidence shows that the facility has been designed and will be operated in a manner that will protect the public health, safety and welfare. Compared to other tower locations, the proposed tower is remote. (2) Compatibility with Development of the Surrounding District; The location of the facility and the nature of the use will, in my opinion, be compatible with the appropriate and orderly development of the district in which it is located. (3) Noise, Fumes, Vibration and Light; The proposed use will be no more objectionable with regard to noise, fumes, vibration or light to nearby properties than operations in permitted uses in a residential district. (4) Conflict with Public Facilities and Roads; There was no evidence that the proposed use will conflict with any existing or programmed public facility, public service or road. (5) Health Department and Planning & Zoning Recommendations; The Department of Health and the Office of Planning and Zoning have no objection to the application. 7

9 (6) Public Need; There was testimony provided by the applicants of the need to better provide service to its customers. (7) Adherence to Criteria for Use; There was evidence that this facility will be able to adhere to the criteria that govern a telecommunications tower. (8) Critical Area Compliance; The facility is not in the critical area. (9) Compliance with the Landscape Manual; There was evidence that the applicants will comply with the Landscape Manual. I conclude that the applicant is entitled to the special exception it has requested. ORDER PURSUANT to the application of Verizon Wireless and Thomas and Imogene Brown, as trustees of the Thomas A. and Imogene Brown Trust dated July 2, 1984, petitioning for a special exception to allow a commercial telecommunications facility in an RLD District; and PURSUANT to the notice, posting of the property, and public hearing and in accordance with the provisions of law, it is this 10 th day of September, 2015, ORDERED, by the Administrative Hearing Officer of Anne Arundel County that the applicants are hereby granted a special exception to allow the 8

10 construction of a 140-foot monopole pursuant to and of the Code, on property identified as Parcel 110 in Block 14 on Tax Map 31, with a street address of 1140 Sunrise Beach Road, Crownsville, Maryland 20132, as shown on the site plan admitted into evidence as County Exhibit 2. Furthermore, County Exhibit 2, referenced in this decision, is incorporated herein as if fully set forth and made a part of this Order. The proposed improvements shown on County Exhibit 2 shall be constructed on the subject property in the locations shown therein. The foregoing special exception is subject to the following conditions: 1. The applicant must show proof at permitting of two providers, failing which the monopole shall be limited in height to 100 feet. 2. All operations on the facility shall be screened from exterior view, and all screening shall comply with the County s Landscape Manual, as required by (9). 3. The applicants shall comply with any instructions and necessary approvals from the Development Division and Permit Application Center, as well as instructions and necessary approvals from any state or federal agency with regulatory jurisdiction over the subject property or the use authorized by this special exception. 4. The tower shall not be lighted, except for any lighting needed to provide warning lights to aircraft or helicopters. 9

11 NOTICE TO APPLICANTS This Order does not constitute a building permit. In order for the applicant to construct the structures permitted in this decision, the applicant must apply for and obtain the necessary building permits, along with any other approvals required to perform the work described herein. Any person, firm, corporation, or governmental agency having an interest in this Decision and aggrieved thereby may file a Notice of Appeal with the County Board of Appeals within thirty (30) days from the date of this Decision Further, (a) provides that a variance or special exception that is not extended or tolled expires by operation of law unless the applicant within 18 months of the granting of the variance or special exception (1) obtains a building permit or (2) files an application for subdivision. Thereafter, the variance or special exception shall not expire so long as (1) construction proceeds in accordance with the permit or (2) a record plat is recorded among the land records pursuant to the application for subdivision, the applicant obtains a building permit within one year after recordation of the plat, and construction proceeds in accordance with the permit. If this case is not appealed, exhibits must be claimed within 60 days of the date of this Order, otherwise they will be discarded. 10

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