14 March 2006 Dearborn County BZA Meeting Notes

14 March 2006 Dearborn County BZA Meeting Notes

Present: Jim Deaton, Chairman, Jane Ohlmansiek, Patty, Baker, Mike Hall, and Jake Hoog.
Also Present: Arnie McGill, Att’y and Mark McCormack, Enforcement Officer

Officers elected- Deaton, Chairman, Jake Hoog, Vice Chairman, and Jane Ohlmansiek, Secretary
Arnie McGill was reappointed Attorney.

1. Front yard variance for the location of a pole barn on Boyd Road for John Makstaller on 8.595 acres in Ag zone in Sparta Township. Variance request was for 53.5 ft setback. One neighbor was opposed due to view obstruction from his considerable investment in his home. Makstellar is building barn before the home. Property has steep slopes and a pond. Only site available without some excavation. Ohlmansiek motioned and Baker 2nd to allow the variance per site plan. All ayes. Passed.

FOUR HOURS OF DISCUSSION LEAD TO DENIAL OF CELL TOWER FOR CBW.

2. Conditional use for the location of a telecommunications tower by Steve Carr (Cincinnati Bell Wireless) for owner Dan Helcher on Losekamp Road on 14 acres in Ag zone in Harrison Township.

HC Nutting Company is the county’s agent on cell tower reviews in the county. They have currently reviewed 12 applications in Dearborn County and all have been able to be co-located on existing towers. This application is unable to be co-located due to a gap in service along Jamison Road- an area that connects between two of their existing towers. (CBW is also co-located on a tower in Bright)
This tower will be 190 ft tall, lower than the originally proposed 220 ft height. This also eliminates the need for FAA required lighting. Fence and landscaping will be included. Carr went through the conditional use requirements and answered each from CBW’s perspective, He did note that there is no way to hide a 190 ft tower.

Lisa Lehner- att’y representing Karen and Dave Cody adjoining property owners in Morgan Meadows Subd’n – introduced herself, Greg Dale a certified planner, and Nelson Elliott, a certified real estate appraiser. She requested they DENY the application for reasons that were submitted earlier in writing as well as tonight in person.
Lehner presented several technical points that were wrong with the application. Among them were: no evidence that HC Nutting had Planning certification for non- tech issues or authorization to review tech issues, Federal law requirements of more than just tech review, Federal law requiring that CBW show a SIGNIFICANT gap in the area for all wireless providers, requirements to fill the gap in the least intrusive manner.
She went on to mention local laws regarding Articles 15 and 3 protecting Ag uses and Residential uses of the lands in the county. She discussed the lack of property interest that CBW had, as well as the visual impacts and decreased property values as a result of the tower.
Karen Cody presented a slide show of pictures of their home and the neighboring properties with photo-shopped cell tower placement to show the NEGATIVE visual impact.
Other neighbors speaking to that issue, country settings, and the property values were: Jim Ferris, Julie Neyer, Don Mulaley, Cara Tsulef, Jeff Brand, Mike Annis, ? Cottrell, Ken Kirsch, and Mike Uhde.
Lehner went on to introduce more problems with technicalities with the application process including: CBW failure to complete application prior to agenda deadline, original applications in 2004-5 so had plenty of time, property owners not signing application, proposed lease memo is unsigned by CBW (no proof of valid lease), several court cases upholding denials based on the above issues, and went back to the code in Article 15. Aesthetic harmony is a primary goal for the BZA to consider, federal law accepts gaps in coverage, no proof of the gap in paperwork. Lehner stated that Jamison Road is sparsely populated and is NOT a major artery. [NOTE: Actually Jamison is a major feeder to the Bright area.]

Nelson Elliott- certified appraiser- said the attorney takes the law and looks for facts to fill in. An appraiser looks for facts first to form an opinion. His opinion noted the following: The tower is in an area with kids- it’s right next to a subdivision. (climbing safety issues). The tower is SW of Cody’s and wind comes from that direction. (500 ft away) – Frost, ice, and wind issues potentially. The tower casts a shadow on their home.
From a comfort and welfare standpoint, you couldn’t build a 15 story building here, but this tower is as high. Ag and R are the two lowest priority zones for this tower in the code. Section 15 says you have to protect against POTENTIAL effects.
Regarding property value, Elliott noted that he ca not tell exactly what percentage their property will be devalued, though East and West coast studies in densely populated areas have shown property value loss with cell towers by homes. According to topo maps he sees 3 more locations that might work. This one was “easier.” If Jamison is the only problem, there are alternate routes and alternate methods to get cell coverage. He saw $$signs and the seller was willing, so it was cheaper to construct there.
THIS IS ESSENTIALLY A COMMERCIAL ZONE SURROUNDED BY AG NEXT TO R. And they (Cody’s) were here first!
[NOTE: There did not appear to be an actual letter signed by teh appraiser attesting to the devaulation of this property.]

Greg Dale Commercial Planner and certified by AICP – [NOTE: Greg Dale also presents seminars where previous Planning Commission members trained, has written for the Planning Commissioner’s Journal, and previously appeared in Dearborn County representing Perfect North Slope in their Zone change request to B-2 in 1997.] He discussed the land use and zoning issues. He noted the visual analysis was NOT done by CBW, but by the neighbors. They called the surrounding land uses- undeveloped wooded land- it was not just that. The Applicant has a burden to do this analysis – per code.

Lehner returned to add that Cody’s had another cell tower assessment done by an outside company. She just received that report today and so it was being submitted tonight to the board. [NOTE: The board couldn’t possibly review that in detail]
The key report points were:
1. has to prove this is Best site
2. has to prove other sites not done
3. questioned why CBW is trying to serve unpopulated Jamison Road
4. proposed site doesn’t serve the community at hand
5. proposed alternate sites (2) that will serve Bright and are in areas where towers are encouraged to be giving hand-off to Grubbs Rd and other cells in area
6. thought 150 ft would work as well as 190 ft.
Lehner said the Codys feel passionately about this and paid a lot of money to get professional reports needed. They essentially fulfilled the applicant’s responsibility. They request DENIAL.

PUBLIC speakers added a few more points:
Ken Kirsch- questioned the radiation- fed gov’t may say it’s safe, but so was asbestos…
Don Mulaley- Pictures don’t do justice to just how big it looks outside.
Mike Uhde- noted he also has gaps in Verizon coverage in this area. [NOTE: This did not help their case!] Also did a 90 sec skit of home buyers looking through ads with oil rigs or towers next door. People can make money- just not at other’s expense. Plus they will make money leasing tower to others also.
Karen Cochran- only adult on earth without a cell phone- the purpose of this tower is so people can talk WHILE DRIVING on Jamison Rd????

Rebuttal: Cinti Bell Wireless- Steve Carr-
1. Wish we didn’t have to allow others on our tower- helps our competition- but your law requires it!
2. Will remove towers when no longer used and return land to original status.
3. Independent consultant report suggested tower in Bright- we already have that- co-located
4. This is the wave of the future- people are abandoning their land lines.
5. Tower produces no odor, traffic, or noise. It has no light.
6. Their studies show no real effect on homes sales. [NOTE: That’s NOT believable]
7. Bright has a big tower and all development around it- also new development planned near it. [NOTE: That is different- the buyers KNOW what they are getting into.]
8. NO tree foliage in these pictures- ¾ of year they will shield the tower.
9. Ice forms but we meet requirements
10. Power lines on these streets in these pictures are also viewed from these homes.
11. We DID a visual impact assessment for Nutting and in Phase 1 report we state these homes are here.
12. Can NOT do it with 150 ft tower. (Rene Webb CBW engineer stated that- she also described the MgHz differences between CBW – a PCS carrier at 1900 MgHz and Verizon or Sprint a cellular 850 MgHz carrier. CBW signals do not travel as far so towers have to be closer together.
13. A 350 home development is PLANNED in direct view of the Bright tower.
14. Rene Webb noted they’d need 3 towers instead of 1 to connect Harrison to their island in Bright if other route was used.
15. Photos were submitted with this application through Nutting and Carr

Lehner objected to cutting off public discussion- when she spoke again she reiterated most of her previous arguments.

Board review:
Deaton noted the relevant codes and stated- WE ARE NOT A COURT OF LAW - WE HAVE TO FOLLOW THIS CODE.
Hoog noted the cell tower seemed inappropriate in that area
Baker cited the “will not impede the normal and orderly development and improvement section.
Hall said the only thing in question was their manner of choosing “friendly” sites- did it eliminate other good sites.
Ohlmansiek – the impact is felt further away from it along that ridge.
(Most were stuck on section 315 b)
Baker motioned to deny the conditional use based on Article 3 Section 315 B and Section 1514 number 5 (i.e. it was not in harmony with the character of the area and no other hilltops were investigated)
Ohlmansiek 2nd. 3 ayes- 1 Nay (Hall) Chair did not vote.
DENIED.

Administrative:
Mark McCormack announced the 6:30 executive session for March 27th with both boards to discuss the hiring committee report and a litigation issue on the sign ordinance.
The regular PC meeting is moved from 7 to 7:30 that night.

Meeting adjourned 11:15 PM

Christine Brauer Mueller
Lawrenceburg Township