MINUTES OF THE REGULAR MEETING OF THE GEORGETOWN CHARTER TOWNSHIP ZONING BOARD OF APPEALS HELD MAY 23, 2007

 

The meeting was called to order at 7:30 p.m. by Chairman Daniel Lennington.

 

Members Present:         John Fanthorpe, Joyce Weise, Daniel Lennington and Carl DeVree

Members Absent:         Greg Honderd

Others Present: Mannette Minier, Secretary and Zoning Administrator, and the applicants

 

#070523-01 - Approval of the minutes

 

The minutes of the regular meeting held on February 28, 2007 were presented.

 

A motion was made and seconded to approve the minutes of the regular meeting held on February 28, 2007, as presented.

 

MOTION CARRIED.

 

#070523-02 – (VAR0703)

 

Faulk & Foster, 3040 Charlevoix, Grand Rapids, for Clearwire US LLC, is requesting to locate a wireless communication tower 1.4 miles from an existing tower, a variance of .6 miles from the two mile radius requirement in Sec. 20.4(AB)(6), in a (LDR) Low Density Residential district, on a parcel of land described as P.P. # 70-14-10-300-016, located at 8375 20th Ave., Georgetown Township, Ottawa County, Michigan. (submittal material) (SUP letter) (variance letter) (JPS letter co-location) (map showing coverage with the tower) (map showing coverage without the tower) (site plan) (NIER letter)

 

Jamie Abbgy, Faulk and Foster for Clearwire US LLC, represented the applicant and presented the request.  A letter from the City of Grand Rapids was submitted in support of Clearwire’s request since Clearwire was expanding beyond the Grand Rapids market.  Jamie Abbgy noted that Clearwire had already co-located on the existing towers in the Township and planned to co-locate on the planned towers; however, the existing towers were not able to provide service to the targeted area.  Maps showing coverage were provided both with and without the proposed tower.  The applicant said that East Grand Rapids High School had already done the same thing with the light pole.

 

Joyce Weise asked about coverage west of 36th Ave. and was told that even with the proposed tower coverage in that area would be sporadic. 

 

The applicant explained that BroadBreeze had a deal with Ottawa County, but bailed out.  He said that the anticipation was that Clearwire would now have the deal to build-out Ottawa County.

 

Joyce Weise asked about using the service and was told that a person had to subscribe to the service in order to use it.

 

John Fanthorpe asked what the terms were for Clearwire to locate on the school property.

 

Kim Hanson, Director of Business for Jenison Public Schools, said that the company would pay the school $800 per month in lease fees with a 3% increase per year.

 

Carl DeVree asked if there would be lights at the top of the pole and the applicant said no.  It was noted that towers needed lights if taller than 195 feet.

 

The zoning administrator presented a review as follows:

 

REQUEST

Faulk & Foster, on behalf of Clearwire US LLC, is requesting to construct a 110 foot pole to replace an existing 70 light pole adjacent to the Jenison High School football field on the school property.  The purpose is for this company to provide wireless internet to an area currently not served by any existing tower.  In addition, Jenison public school intends to add the necessary equipment to transmit radio service to the buses.  The company has indicated that they have already co-located on the existing towers in the area and plans to co-locate on the soon-to-be constructed tower at Maplewood Park.  However, the applicant has stated that the existing and future tower do not provide coverage to the area they propose to service.  Illustrations are provided with maps provided with the submittal material.

 

The equipment that is currently located on the existing 70 foot pole at the Jenison football field including the field lights and speakers will be replaced on the new 110 foot pole at their current heights.  A 7 by 7 foot fenced area behind the upper concession stand will be fenced and landscaped to enclose the 2.1 by 2.1 foot equipment cabinet which is permitted under Sec. 3.4(M). 

 

A special use permit is required for a communication tower under Sec. 8.3 (O) in a LDR district and the determination has been made that even though this is a “pole,” it would still meet the intention of the ordinance in regards to a “tower.”  It appears that the request complies with all the general standards in Sec. 20.3 and specific standards listed in Sec. 20.4(AB) except for Sec. AB(6) which states: “Unless located on the same site or tower with another user, no new tower shall be erected within a two mile radius of an existing radio, television or cellular communications tower.”  The cell tower located at 20th Ave. and Rosewood is 1.4 miles from this proposed tower.

 

Sec. 20.4(AB) lists the specific special use standards as follows:

(AB)    Radio, television, and wireless communication towers {excluding towers which meet the criteria of Sec. 3.27(B)}.

            (1)        The minimum lot size shall be the same as that of the district in which the tower is located.  (Met.)

            (2)        The tower shall be set back from all lot lines a minimum distance equal to one-half (1/2) the height of the tower.  All other buildings, structures, and guy wires shall meet the minimum setback requirements of the Zoning District.  (Met.)

            (3)        In Residential Districts, such towers shall not exceed one hundred (100) feet in height, unless located on publicly owned land.  (Met.  The school is publicly owned land.)  

a.  Existing commercial wireless communication towers established prior to the adoption

of the Wireless Communication Tower Ordinance in November 1997, located in

residentially zoned districts may be rebuilt to a height not to exceed 195 feet for the sole

purpose of accommodating co-location. (revised 11-27-2000)  (NA)

            (4)        A security fence at least six (6) feet in height shall be constructed around the tower and supports. (Met.)

            (5)        Where possible, joint use of tower facilities shall be required for multiple users in order to minimize the number of separate towers and individual locations throughout the township.  As a condition of approval, the applicant shall agree to permit future users to share the tower facility.(Met.) (letter)

            (6)        Unless located on the same site or tower with another user, no new tower shall be erected within a two (2) mile radius of an existing radio, television, or cellular communications tower.  (Not met.  Variance requested)

            (7)        Where the effect of any of the provisions of this ordinance would be to prevent or preclude the operation of amateur radio antennas, the Township Board may approve the use if the applicant demonstrates that the requirements would interfere with the reasonable accommodations of amateur radio communications. (Revised 11-97)  (NA)

 

Variance standards in Sec. 28.11(C) are required to be met in order for a variance to be granted.  The standards that have objectively been met are noted with an “X” in the “yes” column.  The others are open to interpretation by the ZBA and the ZBA should determine if those standards are met.

 

Variance ID

 

VAR0703

 

Applicant

 

Faulk & Foster for Clearwire US LLC

 

Address

 

8375 20th Ave.

 

Request

 

Tower within a 2 mile radius of another tower (1.4 miles)

 

Date

 

Applied for May 23, 2007 meeting

 

 

#

 

YES

 

NO

 

CONDITIONS (Chapter 28.11-C)

1

X

 

 

Granting the variance(s) will be in the public interest and will ensure that the spirit of the Ordinance shall be observed.

2

X

 

Granting the variance shall not permit the establishment within a district of any use which is prohibited, nor shall any use variances be granted.

3

X

 

That there are practical difficulties in complying with the standards of the Zoning Ordinance resulting form exceptional, extraordinary, or unique circumstances or conditions applying to the property in question, that do not generally apply to other property or uses in the vicinity in the same zoning district; and have not resulted from the adoption of this Ordinance.

4

X

 

That the granting of such variance will not be of substantial detriment to adjacent properties or improvements in the vicinity; or, that the application of conditions of an approved variance will eliminate or sufficiently mitigate potential detrimental impacts.

5

 

 

That granting such variance is necessary for the preservation of a substantial property right possessed by other properties in the vicinity in the same zoning district.

6

X

 

That granting such variance will not cause any existing non-conforming use, structure, or condition to be increased or perpetuated, contrary to the provisions of Chapter 27 of this Ordinance, except in accordance with Section 27.12.

7

X

 

That the variance is not necessitated as a result of any action or inaction of the applicant.

 

The ZBA should determine if standard 5 is met and if they agree with the determination that 1, 2, 3, 4, 6 and 7 are met.

 

Standard #1 - Granting the variance will be in the public interest and will ensure that the spirit of the Ordinance shall be observed.

 

Met.  With advanced technology that is available today, people commonly and regularly use devices such as cell phones and computers for access to the internet.  Communications towers are necessary to provide those services.  It is in the public interest to have these services available in the Township and it is important for multiple companies to offer the service for price competition.  Township officials who adopted ordinances regulating communications towers recognized that fact even years ago when the ordinances pertaining to such uses were adopted.  The intention of the ordinance was to regulate the proximity of towers to other existing towers for aesthetic reasons to prohibit the proliferation of such towers around the Township to prevent them from become unsightly, especially when it is possible for uses to co-locate on existing towers. 

 

As per the applicant’s letter dated May 1, 2007, the applicant has already co-located on the two other towers available in the vicinity and plans to co-locate on a tower soon to be constructed at Maplewood Park.  Those existing antennas do not provide sufficient coverage for the area Clearwire is seeking to cover.  (Maps were provided in the submittal materials indicating coverage availability from the existing towers and showing the areas where coverage is needed and could not be serviced by exiting towers.)  By locating the tower adjacent to the Jenison High School football field, the applicant has chosen an area that is a minimum of 466 feet from any adjacent residences.  In addition, a pole currently exists at a height of 70 feet with lights and speakers for use at the football field.  By locating the pole in this unobtrusive area, the spirit of the ordinance has been met by not constructing an unsightly tower that would be offensive to the area residents.

 

Standard #2 - Granting the variance shall not permit the establishment within a district of any use, which is prohibited, nor shall any use variances be granted.

 

Met.  The use is allowed with a special use permit and an application has already been submitted. 

 

Standard #3 - That there are practical difficulties in complying with the standards of the Zoning Ordinance resulting from exceptional, extraordinary, or unique circumstances or conditions applying to the property in question, that do not generally apply to other property or uses in the vicinity in the same zoning district; and have not resulted from the adoption of this Ordinance.

 

Met.  The applicant has indicated in the submittal materials that the company has already co-located on the existing towers in the vicinity and has indicated to the Township that they plan to co-locate on a tower to be constructed by the Township at Maplewood Park.  According to the information provided by the applicant (and shown on the attached service area maps), the locations of the existing towers do not offer the coverage needed to provide service to the area the new pole (tower) is designated to serve.  This documents the fact that the applicants have tried to provide the needed service while complying with the ordinance; however, the coverage with the existing towers is not sufficient.  The difficulty is that the extra tower is needed to service Township residents in this area.

 

Standard #4 - That the granting of such variances will not be of substantial detriment to adjacent properties or improvements in the vicinity; or, that the application of conditions of an approved variance will eliminate or sufficiently mitigate potential detrimental impacts.

 

Met.  The proposed location of the light pole is 466 feet from the nearest residence.  The area is shielded with trees and is on a hill by the high school football field.  People in the area are accustomed to seeing the light poles at the field.  Although the new pole will be 110 feet, 40 feet taller than the current 70 foot pole, the structure is merely a pole rather than a complete tower.  The affect on and visibility from neighboring properties is minimal.  In addition, the applicant proposes to landscape around the fenced equipment area to further mitigate the visibility to this area.

 

Standard #5 - That granting such variance is necessary for the preservation of a substantial property right possessed by other properties in the vicinity in the same zoning district.

 

The ZBA should make this determination.  The property right possessed by other properties in the Township is the right to have wireless internet (whether provided by one company or multiple companies for competition) and that service from this company would only be available to the targeted area with the additional pole to provide coverage in the area.

 

Standard #6 - That granting such variance will not cause any existing non-conforming use, structure, or condition to be increased or perpetuated, contrary to the provisions of Chapter 27 of this Ordinance, except in accordance in Section 27.12.

 

Met. 

 

Standard #7 - That the variance is not necessitated as a result of any action or inaction of the applicant.

 

Met.  It appears as though the applicant has taken every opportunity to provide the coverage while complying with the ordinance.  The fact that no towers currently exist in a location that could provide the needed coverage is not the result of any action or inaction of the applicant.

 

DISCUSSION. 

 

It is in the best interests of the residents of the Township to have wireless internet service available from at least one company and best if it is available from multiple companies for price competition.  The applicant has indicated that they have made every effort to provide service from the existing towers; however, the new pole is necessary for the service to reach the particular targeted area.  The spot chosen on Jenison High School property to locate a pole would be a good area since it is a long distance from any residences and people are accustomed to seeing the light poles around the football field.  The pole would be less obtrusive than a tower.  An additional benefit is that Jenison Public Schools would have the ability to add their own equipment for radio service to the buses.  Also, the schools would benefit from the income generated by the lease.

 

One other item to consider is that Michigan Compiled Laws 380.1263 gives the Superintendent of Public Instruction the sole and exclusive jurisdiction over any construction of buildings for either instructional or non-instructional school purposes.  If this pole was to be constructed only for the Jenison Public Schools’ benefit, the determination has been made that the process of the variance request and special land use approval for the construction of the pole would be unnecessary and exempt from zoning (although the schools in the Township have in the past submitted materials for courtesy reviews).  In addition, Sec. 20.4(AB)(5) requires that towers are available for other uses to co-locate and the use of the tower by both the school and Clearwire complies with that requirement of the ordinance.  However, since Clearwire would be the applicant and their use would be commercial, the determination has been made that they are not exempt from zoning. 

 

Dan Lennington said that he appreciated the school working with the Township since the school was exempt from zoning.

 

There was discussion regarding the Zoning Ordinance requirements for a communication tower.  The zoning administrator explained that the interpretation was made that even though this was a pole, it still met the ordinance intention of a communication tower.

 

The chairman opened the public hearing.

 

Mrs. Sheler, 8257 Lamplight, was concerned that the tower would get bigger and there would be more towers, and she said this was a big difference from what the notice said.

 

Dan Lennington clarified that school support for the tower would be needed before any company could construct a tower on school property.  It was noted that the tower had been approved by the School Board.

 

The chairman closed the public hearing.

 

The zoning administrator noted that the property notice was correctly written listing the variance request.

 

There was discussion as to whether the Zoning Ordinance would permit another tower to be located on the site.  It was noted that meetings would have to be held at the school before that would happen.

 

The applicant stated that the tower locations were planned and that Ottawa County may decide to use Clearwire for a build-out.  He said that the company has co-located everywhere possible and they wanted to be sensitive to the community since members of the community would be the customers.

 

Dan Lennington asked about the equipment that was used to co-locate and was told an antenna.  He asked about co-locations and what approvals were needed from the Township when there was a co-location.

 

The zoning administrator said that the standards of the ordinance for a special use permit for a communication tower stipulate that the applicant for the tower must agree to allow others to co-locate on the tower so that there was not a proliferation of towers in the Township.  She said that in order for co-location, a building permit application and zoning compliance application must be submitted and the building codes must be met for weight loads and any other requirements in the building code.  She said that a special use permit was only required initially for the construction of the tower and was not permitted for co-location.

 

There was discussion regarding the possibility of another tower being located close to this site and it was noted that number 6 in the special use standards states that unless located on the same site or tower with another user, no new tower shall be erected within a two mile radius of an existing communications tower.

 

Dan Lennington asked if East Grand Rapids High School had more than one tower and was told they only had one tower.

 

Joyce Weise asked about the diameter of the light pole.

 

The applicant said that it would not be substantially different from the other light pole.  He said that he has driven by the one at East Grand Rapids High School for years and never realized that it was a communications tower until he started working with the company for the towers.

 

Dan Lennington asked about the School Board’s intention.

 

Kim Hansen said that the school did not intend to have rentals, but liked Clearwire building the tower because there would be no cost to the school and they could locate the school antennas on the tower.

 

Dan Lennington said that if residents are concerned, they would have opportunities to learn of additional towers at either Township meetings or School Board meetings.

 

Carl DeVree said that they would not propagate.

 

Moved by Carl DeVree, seconded by John Fanthorpe, to approve the variance request for (VAR0703) Faulk & Foster, 3040 Charlevoix, Grand Rapids, for Clearwire US LLC, to locate a wireless communication tower 1.4 miles from an existing tower, a variance of .6 (6/10ths of a mile) from the two mile radius requirement in Sec. 20.4(AB)(6), in a (LDR) Low Density Residential district, on a parcel of land described as P.P. # 70-14-10-300-016, located at 8375 20th Ave., Georgetown Township, Ottawa County, Michigan, based on conformance with all the seven standards of the ordinance. 

 

It was noted that no conditions were necessary since the plan already showed landscaping around the equipment area to mitigate the visual impacts.

 

MOTION CARRIED.

 

#070523-03 - Adjournment

 

The meeting was adjourned at 8:00 p.m.