03-20-2001 Planning Commission Meeting

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Page 2 — Special Report Communication Towers Charlottesville.The proposed tower would have risen The U.S.District Court for the Southern Dis- -_ from the ridgeline of a mountain and extended 40 to trict of California ruled a decision must be based on 50 feet above the tree canopy.Except for the property more than just residents' concern about neighborhood owner who intended to lease the property to build the aesthetics. However, the court ruled the City of El tower, the county's citizens were unanimous in their Cajon properly denied a permit application because opposition to the tower siting.Forty citizens signed a the proposed tower would create safety and security petition in opposition, while 23 spoke in opposition problems,which was a question of police power, not during hearings on the proposal.Most importantly,the simply another"Not in My Backyard"complaint.Both proposed tower would be inconsistent with the county's the city and the applicant agreed the proposal was more comprehensive plan,open space plan,and zoning or- compatible with commercially zoned properties than dinance,which discouraged activities that would alter the suggested residentially zoned district. The court the continuity of the ridgeline. was also presented with a petition signed by 212 resi- In a Pennsylvania case,the tower applicant ap- dents opposing the project.Finally,the residents' ex- plied for a variance necessary for construction of the periences with another wireless provider made their tower.Under the local ordinance,variances could only observations on visual blight, noise,etc.,more cred- be granted if the applicant established unique physical ible since they were based on personal experience. characteristics of the property inflicted undue hard- The ultimate lesson is that if you choose to ship,the property could not be developed in strict con- deny a permit application for a wireless communica- formity with the ordinance,the applicant did not cre- tions tower, make sure you have ample reasonable, ate the hardship,the essential character of the neigh- credible,and clear evidence supporting your decision. borhood would not be changed, and the variance re- quested was the minimum necessary to afford relief. Citations: At the hearing, the tower applicant provided Telespectrum Inc. v.Public Service Commission almost no evidence about the physical characteristics of Kentucky, 6th U.S. Circuit Court of Appeals, Nos. of the property in question.Instead of focusing on the 99-5822, 99-5871, & 99-5919(2000). characteristics of the property,the applicant fixed on The 6th Circuit has jurisdiction over Kentucky, the quality of service it could provide customers. In Michigan, Ohio, and Tennessee. particular,it argued it needed the variance to"provide seamless coverage as required under its FCC license." 360 Degrees Communications Company of The applicant never provided a description of how the Charlottesville v. The Board of Supervisors of particular land in question was unique and how its al- Albemarle County,4th U.S. Circuit Court of Appeals, leged hardship was directly related to the unique char- Nos. 99-1816& 99-1897(2000). acteristics of the land. The 4th Circuit has jurisdiction over Maryland, The applicant's tower design called for a tower North Carolina, South Carolina, Virginia, and West height nearly five times the height restriction in the Virginia. district. It presented no evidence explaining why a APT Pittsburgh Limited Partnership v. Lower shorter tower would prevent it from closing its gap in Yoder Township, U.S. District Court for the Western service. It showed no evidence of efforts to acquire Dist. of Pennsylvania, No. 98-187J(2000). other properties,locate on other sites,or explore alter- native tower designs. Ultimately, for the above rea- Airtouch Cellular v The City of El Cajon, U.S. sons,the local authority correctly denied the applicant's District Court for the Southern Dist. of California, permit application. No. 99-1801-B(LAB) (2000).