Hearings of special use permit applications are required to follow quasi-judicial procedures. The purpose of a quasi-judicial hearing is to gather

Similar documents
ARTICLE 23 TELECOMMUNICATIONS TOWERS

Action Required in the Event of Abandonment of Cellular Tower Staff Review Proposals by the Applicant

MEMORANDUM. CBJ Law Department. From: Subject: Federal Telecommunications Act of 1996 Date: January 22, To:

COMMUNICATION TOWERS

- CODE APPENDIX A - ZONING ORDINANCE ARTICLE 13. HISTORIC AND CULTURAL DISTRICT

RULES OF PROCEDURE FOR PROCEEDINGS BEFORE THE HEARING EXAMINER OF THE CITY OF PUYALLUP, WASHINGTON CHAPTER I: HEARINGS ON PERMIT APPLICATIONS

IN THE COURT OF APPEALS OF NORTH CAROLINA. No. COA Filed: 6 June 2017

CHAPTER USES 1

ARTICLE 7 AMENDMENTS TO ORDINANCE

ARTICLE 3. ZONING AND PERMITTING PROCEDURES

Telecommunications Law

ARTICLE 7 AMENDMENTS TO ORDINANCE

CALVERT COUNTY BOARD OF APPEALS ORDER

ARTICLE 4. LEGISLATIVE/QUASI-JUDICIAL PROCEDURES

ARTICLE 7 AMENDMENTS TO ORDINANCE

ARTICLE 15 ADMINISTRATIVE PROCEDURE AND ENFORCEMENT

PROCEDURES FOR CONSIDERATION OF REQUEST FOR AMENDMENTS, REVISIONS OR CHANGES

PROPOSED FINDINGS OF FACT SUBMITTED TO THE ZONING BOARD OF APPEALS. In the Matter of a Special Use Application. for Address: Board Calendar No.

ORDINANCE NO BE IT FURTHER ENACTED AND ORDAINED by the Mayor and City Council of Laurel, Maryland that

Chapter 11: Map and Text Amendments

ARLINGTON COUNTY, VIRGINIA

RULES OF PROCEDURE BEFORE THE COWLITZ COUNTY HEARINGS EXAMINER

DPW Order No:

SPECIAL USE PERMIT APPLICATION SUBMITTAL CHECKLIST

Plan and Zoning Commission City of Richmond Heights, Missouri

RULES AND REGULATIONS GOVERNING THE PROCEDURE OF THE BOARD OF ZONING ADJUSTMENT KANSAS CITY, MISSOURI AS ADOPTED

ORDINANCE NO

-- Rethinking Non-Conformities. David A. Theriaque, Esquire

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 16 October 2012

RULES OF PROCEDURE. For Applications & Appeals

Variance Application Checklist

Variance Application And Notice of Appeal To The Board of Adjustment

MEMORANDUM TO: FROM: THROUGH: SUBJECT: DATE: Planning Commission and City Council History

PERSON COUNTY ROXBORO, NORTH CAROLINA APPLICATION FOR SPECIAL USE PERMIT WIRELESS TELECOMMUNICATIONS FACILITIES

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

VARIANCE APPLICATION Type A B C (circle one)

H. CURTISS MARTIN, ET AL. OPINION BY v. Record No JUSTICE ELIZABETH A. McCLANAHAN JUNE 6, 2013 CITY OF ALEXANDRIA, ET AL.

Administrative Procedures

TOWN OF BERNARDSTON COMMONWEALTH OF MASSACHUSETTS Franklin, SS.

ARTICLE 7 WIRELESS TELECOMMUNICATIONS TOWERS AND FACILITIES

CHAPTER 1 ADMINISTRATION AND ENFORCEMENT

TOWNSHIP OF CLARK Ordinance No. Adopted. Introduced: January 20, 2015 Public Hearing: February 17, Motion: O Connor Motion:

WHEREAS, various federal and state laws partially restrict the City of El Paso de Robles' ability to regulate telecommunications facilities; and

AN ORDINANCE OF THE CITY OF HAHIRA, GEORGIA

Sponsor: Councilwoman Janet Venecz Petitioner: Hammond Plan Commission ORDINANCE NO. 9364

ARTICLE 26 AMENDMENT PROCEDURES

WHEREAS, under California Public Utilities Code Section 7901, the City may not ban such small cell facilities; and

ARTICLE 9. DEVELOPMENT REVIEW

ZONING OVERLAY DISTRICTS

RULES OF PROCEDURE FOR PROCEEDINGS BEFORE THE HEARING EXAMINER ON HEARINGS ON PERMIT APPLICATIONS AND OTHER HEARING MATTERS Policy & Procedure 921

SPECIAL BILLBOARD PERMITS (Sec. 1268)

Ordinance No Exhibit A Antennas/Personal Wireless Telecommunication Facilities.

CITY ORDINANCE NO. 585

Chapter 42 ADMINISTRATIVE ADJUDICATION

IC Chapter 11. Historic Preservation Generally

Coverage -- Typical Ordinances 12/9/2011

ARTICLE IV ADMINISTRATION

City of Paso Robles Planning Commission Agenda Report

(Use this form to file a local law with the Secretary of State.)


ORDINANCE NO

A more in depth look at Special Use Permits. Produced in the Ontario County Planning Department. 2006

April 18, Chairman Dunston then asked the Board to consider approval of the consent agenda.

Collocation/Modification of Wireless Telecommunication Facilities APPLICATION FOR EXPEDITED REVIEW APPLICANT S CHECKLIST

ARTICLE 4 APPLICATION REVIEW PROCEDURES AND APPROVAL CRITERIA 3

COMMUNITY DEVELOPMENT COMMISSION Village of Bensenville VILLAGE HALL September 25, :00 PM

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

EDGEWATER BOARD OF ADJUSTMENT RESOLUTION NO. BOA

TELECOMMUNICATIONS LAW AND PRACTICE IN GEORGIA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

CITY OF KENT, OHIO ZONING CODE CHAPTER 1107 CONDITIONAL ZONING CERTIFICATES AND SPECIALLY PERMITTED USES Page

ATTACHMENT #1 SAFETY ADVISORY AND TRANSPORTATION COMMITTEE MINUTES 09/22/04

THE SUPREME COURT OF NEW HAMPSHIRE NINE A, LLC TOWN OF CHESTERFIELD. Argued: April 30, 2008 Opinion Issued: June 3, 2008

Section 9.12: Cell Tower Regulations

AN ORDINANCE REGULATING WIRELESS COMMUNICATION FACILITIES Alamance County, NC

ORDINANCE # NOW THEREFORE BE IT ORDAINED, by the City Council of the City of American Canyon as follows:

CITY OF LEE S SUMMIT SPECIAL USE PERMIT PROCESS. Purpose of Special Use Permit

**ATTENTION PETITIONERS**

CHAPTER 39: ORDINANCE ENFORCEMENT THROUGH ADMINISTRATIVE ADJUDICATION

ZONING PROCEDURE INTRODUCTION

MEMORANDUM. TA : Amendments to Chapter 27, Zoning

Implementing the FCC Order on Wireless Facilities Collocations - Ordinances and Application Forms

Placentia Planning Commission Agenda

GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2009 SESSION LAW SENATE BILL 44

CHAPTER 37: ADMINISTRATION AND PROCEDURES

SCAN NATOA Telecommunications 101 January 15, 2015 LOCAL REGULATION OF WIRELESS TELECOMMUNICATION FACILITIES

1.000 Development Permit Procedures and Administration

ANSI. American National Standards Institute or its successor organization.

CITY OF SANIBEL ORDINANCE

NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Mountain Brook, Alabama, as follows:

MODEL WIRELESS COMMUNICATIONS FACILITIES CODE

STOKES COUNTY PLANNING & COMMUNITY DEVELOPMENT DEPARTMENT

ORDINANCE NO N.C. (2d)

CHECKLIST: LAND USE PETITION JOHNSON COUNTY DEPARTMENT OF PLANNING AND ZONING

Wireless Facility Siting: Model Chapter Implementing Section 6409(a) and. Wireless Facility Siting: Section 6409(a) Checklist

CITY OF HOOD RIVER PLANNING APPLICATION INSTRUCTIONS

ARTICLE XVI BOARD OF ZONING APPEALS

N.C. Court of Appeals Session N.C. Judicial Center Dec. 8, Zoning Law. David Owens School of Government UNC-CH

B. Establish a fair and efficient process for review and approval of applications.

Great Moments in Land Use Law

Transcription:

Hearings of special use permit applications are required to follow quasi-judicial procedures. The purpose of a quasi-judicial hearing is to gather evidence as to whether or not the application is consistent with the standards set forth in the ordinance.

Ex parte communications are not permitted. Ex parte communications are defined as a communication outside the presence of the other party. All discussion regarding the case should take place at the hearing so that everyone hears what is being said at the same time and has the opportunity to respond or counter testimony immediately.

As a general rule, the person asserting a particular fact should be physically present to testify on that matter. Purported statements by those who are not present, letters from those who are concerned but not present, as well as petitions and affidavits from those not in attendance are all hearsay evidence. While hearsay evidence can be presented, a board may well accord it considerably less weight, or no weight at all. Critical factual findings must not be based solely on hearsay evidence.

Opinion evidence is generally inadmissible when the witness is unqualified to express an opinion because he/she lacks the necessary experience or factual knowledge to form the proper basis for it. State law specifically prohibits use of opinion testimony by non-expert witnesses on any matter upon which only expert testimony would generally be admissible under the rules of evidence. This would include matters such as how the proposed use would affect the value of neighboring properties, and whether vehicular traffic would pose a danger to public safety.

The following persons shall have standing to speak in favor of or in opposition to a petition for a transmission tower: (1) The petitioner/property owner. (2) The owner of the transmission tower provided the owner has an option or contract to lease or purchase the property that is the subject of the petition.

(3) Any person who will suffer special damages as a result of the issuance of the special use permit. A property owner/lessee in the area of the subject property has standing; however, said person should be prepared to articulate specific damages that will be sustained due to the issuance of the permit. There is a rebuttable presumption of standing if a property owner/lessee resides within the 500 foot notice area.

(4) An incorporated or unincorporated association of owners or lessees of the property in the area of the property to which the petition is subject. (5) An association otherwise organized to protest and foster the interest of the particular neighborhood or local area, provided at least one of the members of the association would have standing as an individual to challenge the petition. For #4 and #5, the association must be one that was not created in response to the petition.

A person or entity that has standing may present testimony regarding the following as it relates to a transmission tower petition. Depending upon depth and nature of the testimony, only expert testimony will be allowed. For example, if the concern relates to the structural integrity of the transmission tower, only testimony from an expert with knowledge in the area of tower design will be allowed. Examples include:

(1) Visual impacts/aesthetics (visibility, tree coverage, etc.), if any; (2) Design, siting, stability and security concerns, if any; (depending upon the nature of the concern, expert testimony may be required); (3) Safety concerns relating to the potential for ice-fall and falling debris, if any; (4) Impact of lights, if any;

(5) Noise, if any; (6) Traffic, if any; (provided the witness is an expert) (7) Impact on property values of the property owner presenting testimony. If the impact is on other neighboring property, a real estate appraiser or a mortgage banker that handles residential transactions or some other expert must testify.

[L]and use, public safety, and zoning considerations, including aesthetics, landscaping, structural design, setbacks, and fall zones, or State and local building code requirements

For purposes of this Part, public safety includes, without limitation, federal, State, and local safety regulations but does not include requirements relating to frequency emissions of wireless facilities.

No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission s regulations concerning such emissions.

(F) Required Findings...The Elected Body shall issue a special use permit only when the Elected Body makes an affirmative finding as follows: (1) That the use will not materially endanger the public health or safety if located where proposed and developed according to the application and plan as submitted and approved; (2) That the use meets all required conditions and specifications;

(3) That the use will not substantially injure the value of adjoining or abutting property, or that the use is a public necessity; and, (4) That the location and character of the use, if developed according to the application and plan submitted and approved, will be in harmony with the area in which it is to be located and in general conformity with Legacy.

The inclusion of a use in the ordinance as a permissible special use within a district establishes a prima facie showing or a rebuttable presumption of harmony with the surrounding area rather than a conclusive finding of harmony. Accordingly, the burden is on the opposition to rebut the presumption of harmony rather than simply objecting to the location of the use in their vicinity. The decision making board is not required to find harmony, if competent, material, and substantial evidence reveals that the use contemplated is not in fact in harmony with the area in which it is to be located.

What is harmony? In short, think of harmony as the compatibility of a use with the area in which the use is to be located. What type of factors may be discussed so that harmony be proven/challenged? Visual impact/aesthetics (i.e. visibility, tree coverage, lights) Noise, traffic, crime, vandalism Impact upon property values A denial may not be based upon conclusions which are speculative, sentimental, personal, vague, or merely an excuse to prohibit the requested use.

(1) Approve....Approve the application and direct issuance of the special use permit therefor; (2) Approve with Conditions....Approve the application with conditions as specified in Section B.6-1.3(A)(1) to assure that the site will be developed in a manner conducive to the public health, safety and welfare, and direct issuance of the special use permit; or, (3) Deny....Deny the application. The Elected Body shall enter the reasons for denial in the minutes of the meeting at which the action was taken.

No vote greater than a majority vote shall be required for the Elected Body to issue a special use permit. For the purposes of this section, vacant positions on the Elected Body and members who are absent or excused from voting on a special use permit shall not be considered members of the Elected Body for calculation of the requisite majority.