ANDOVER BOARD OF ZONING
A public hearing on an application for a conditional use to exceed the 60
foot maximum height communication structure limitation to allow construction
of a 199 foot self-support communication tower in the B-5 Highway Business
District at 1403 W. Ledgerwood Drive.
Joe Robertson then read the following:
ANDOVER BOARD OF ZONING APPEALS
CHECKLIST FOR CONDUCTING A PUBLIC
A CONDITIONAL USE
This checklist is to
assist: (1) the Chairperson in conducting the hearing; (2) the Secretary
in an orderly process of minute taking; (3) the applicant in presenting their
request; and (4) any property owners or the persons who have questions or
concerns or wish to know their rights in the matter. Although the order of
the outline should be followed, the material will need to be modified to
relate to the nature and extent of the particular case and the number of
persons to be heard. The Chairperson will find it helpful to mark up a
checklist on each case prior to the hearing so that important procedural
points are not inadvertently missed.
CALL TO ORDER:
is 7:13 p.m. and I now call Agenda item #5, which is a public hearing on Case
No. BZA-CU-2000-01 pursuant to Section 10-108 of the City Zoning Regulations
requesting a conditional use as an exception to permit the establishment of
use to exceed the 60 foot maximum height communication structure limitation
to allow construction of a 199 foot self-support communication tower at 1403
W. Ledgerwood Drive, Andover, Kansas on property zoned as the B-5 Highway
Business District. We would like to welcome everyone interested in this
hearing and lay out a few ground rules:
is important that you present any facts or views that you have as evidence at
this hearing so that findings can be made as a basis of facts for the
decision of this Appeals Board.
Board is authorized by state statutes to make a decision appealable only to
District Court and not to the Governing Body.
our Zoning Administrator provides us with some background information, I
will call upon the applicant and then we will hear from other interested
parties. After all have been heard, each party will have an opportunity for
final comments. The Board will close the hearing to further public comments
and they will then consider their decision during which time they may direct
questions to the applicant, the public, the staff or our consultant.
presenting your comments, you should be aware that the Board could require
that the site be platted or replatted if necessary or dedications be made in
lieu of platting and that screening in the form of fencing and/or landscaping
may be required. Furthermore, the Board may impose such conditions upon the
premises and/or the applicant benefited by the conditional use as may be
necessary to comply with the standards set out in Section 10-108C which would
reduce or minimize any potentially injurious effect of such conditional use
upon other property in the neighborhood and to carry out the general purpose
and intent of these regulations, including methods for guaranteeing
performance such as are provided for In Section 10-108D. Failure to comply
with any of the conditions attached to a zoning permit for a conditional use
shall constitute a violation of the regulations.
should also be fully aware that if the applicant chooses to describe various
features of their development plans, the City can only enforce those
provisions, which are covered in zoning and other City codes. For example,
If the applicant proposes to build a brick building with shake shingles and
later decides to build a concrete block building with asphalt shingles, it's
not something that the City can enforce.
Anyone wishing to speak must be
recognized by the Chairperson and give their name and address. (Because of
the number of people here tonight, please use the podium and speak clearly so
that your comments may be picked up by the tape recorder and summarized for
the minutes by our Secretary.)
DISQUALIFICATION DECLARED AND
Before we proceed with the hearing,
I'll ask the Board members if any of them intend to disqualify themselves
from hearing, discussing and voting on this case because they or their
spouses own property in the area of notification or have conflicts of
interests or a particular bias on this matter. Please let the minute’s show
that no one has disqualified themselves. According to our Bylaws, those
members who only abstain from voting are still part of the quorum. I now
declare that we have a quorum of 7 present for the hearing.
According to the
Secretary, a notice for this hearing was published in the Andover Journal
Advocate on February 24, 2000 and notices were mailed to the applicant and
real property owners of record in the area of notification on February 24,
2000. Unless there is evidence to the contrary from anyone present, I'll
declare that proper notification has been given.
EX PARTE COMMUNICATIONS:
I will now ask the
Board members If any of them have received any ex parte verbal or written
communications prior to this hearing which they would like to share with all
the members at this time. As you know, it is not necessary to disclose the
names of the parties, but to share important information. No ex parte
communication was received prior to the meeting. A document was on the table
for members when the meeting began, submitted by Dennis Bush. 726 S. County Line Road.
now call on our Zoning Administrator, Les Mangus, to provide us with a brief
factual background report on the case.
Mangus stated that at the February Planning Commission and Board of Zoning
Appeals meeting the same group applied for a variance of the zoning at the
same site for the same proposal. The Planning Consultant for the City of Andover, Bickley Foster, pointed out to Les Mangus that this proposal needs to be
considered as a Conditional Use not as a variance, as a variance must include
proof of hardship, but not for a conditional use. Les Mangus stated that the
members should refer to the zoning regulations regarding the specific
questions that must be considered in a Conditional Use.
Robertson called upon the applicant to come to the podium and make his
presentation on the request and any response to the Zoning Administrator's
Austin, of Austin Miller, P.A., 254 S. Laura, Suite 210, Wichita, Kansas, is
representing the applicant, Andover Storage, L.L.C., of 149 S. Andover Road,
Austin asked for a copy of the item that the members received from Mr. Bush
and was given a copy. He then asked how many people had cellular phones.
There were several. He stated there are currently 86.5 million cellular
phone users there are in the United States and the industry is growing at a
rate of 1.1 million users per month. There are 150,000 users in Wichita with growth of 5,000 users per month. He stated that the City of Andover Comprehensive Plan, pages 12 and 13 states that the city is to provide services for
its citizens. Mr. Austin stated that the need for cellular towers is clear,
based on the growth and development of the area. His firm looks for heavy
travel corridors and heavy population areas as this is where the towers need
to be. His firm is proposing a 199’ self-support tower for multiple
carriers. Other towers are also proposed in the area. He stated that the
FAA has approved this height for a tower at this location. Mr. Austin stated
that in order to find a site his firm must consider the following:
Good land with correct zoning.
Current and past land use of proposed site.
4. Availability to phone and electricity to site, and
the economics of getting such to the considered property.
Flood plains and proximity to flood plains.
is very limited zoning for towers in the City of Andover. He feels this is
appropriate for the City. He stated that they feel this is the highest and
best use for this property. It is already zoned B-5. The current property
owner had talked of putting self-storage units in this area however it is not
possible. The owner then discussed putting open storage there. Mr. Austin
stated that this lease will give the landowners 4 times the income compared
to open storage income. Mr. Austin stated that the B-5 zoning recognizes the
towers by right. This is not an issue as to if it can be in the area, this
use is allowed. The issue is the height of the tower.
Mr. Austin stated that the fear of impact on property
values of adjourning properties is more of a perception than a reality. He
stated there is mostly no impact on property values. He referred to the
information in the packet that was sent to the members prior to the meeting,
which included information from several sources in North Carolina and Wichita, stating the lack of impact of adjourning land values. Mr. Austin stated that the
facts do not support the perception that towers reduce property values.
Austin then recapped information, which included supplemental tower
information, conditions required by K.S.A. 12-759(e), studies of
communication towers impacts on property valuations, various photographs,
analysis of properties adjacent to proposed tower site, floodplain and tower
structure information, which were submitted for Planning Commission members
for this meeting. He also stated that there are no co-location opportunities
at this time in this area.
floor was then opened for questions from the committee members or staff.
Quentin Coon asked if there was a drawing of the structure. Mr. Austin
stated he had a photographic stimulation, which he shared with the committee
Orr asked why there were no transmitter platforms on the simulation. Tim Austin
stated that this structure will need 10’ separation between platforms. The
tower they are proposing is designed for 5 carriers. Jim Orr asked if the
higher the tower, the longer the range. Mr. Austin stated this was true and
also depends on the carrier, the capacity and other criteria. Quentin Coon
asked if the photograph shows a 199’ tower. Mr. Austin stated it did and the
tower is located on South Broadway, 5 blocks south of Kellogg. Joe Robertson
confirmed this was not a monopole. Mr. Austin stated it is not a monopole;
however, there is a monopole tower in Carriage Parkway, in East Wichita.
Mangus asked about the size of a lattice pole. Mr. Austin stated that lattice
pole construction is 26’ x 26’ triangle at the ground level with 65’ footings
and the top of this lattice pole is 8’ x 8’. Les Mangus asked about a
monopole base. Mr. Austin stated that a similar monopole tower has apx. a 6’
diameter base, but he hasn’t measured one.
Orr asked if there were guy wires on the proposed tower. Mr. Austin stated
Mangus asked for conformation that the manufacturer states in their
information that this tower if it falls, will fall within the site. Mr.
Austin stated that that is indeed what the manufacturer stated. Mr. Austin
stated that it should fall in the lease area; however it would depend on the
wind and other factors.
Tim McFadden asked if there was any property in the area
that had been platted for residential use that has not been developed at this
time. Les Mangus stated yes, that Cottonwood Point has been platted but not
improved. Mr. McFadden asked if Cottonwood Point has been approved by the
City Council. Mr. Mangus stated that it had been approved. Mr. McFadden
asked what about the developer’s rights in this case. Mr. Mangus stated that
the developer was present for this meeting.
was then general discussion regarding the property value study that had been
done for Austin Miller, P.A.
Bridges asked if the applicant was a provider or aggregator of services. Mr.
Austin stated that the applicant does not provide cellular service, they
build towers. Mr. Bridges asked if we were provided with a map of existing
towers. Mr. Austin said no, there was no map provided. Tim Austin stated
that AT & T and Voice Stream are looking for towers. He stated that he
thinks these companies would not be looking for other locations if co-locates
were available and he also stated this information is not required to be
Coon asked why 199’ height. Tim Austin stated that the height would allow
you to reduce the number of towers necessary and provide opportunities for
co-location. Les Mangus asked if he remembered correctly in that the company
had stated this tower would be for up to 8 users. Mr. Austin stated that was
correct for PCS and phone providers. The number of users would depend upon
how many antennas would be needed.
Tim McFadden asked if the home appraisals provided were
rentals or owned. Mr. Austin stated the Sedgwick County Appraisers Office
provided the information and it included both rental and owners. Mr. Austin
stated that the Sedgwick County Appraiser’s office is the best position to
give the most correct information. Tim McFadden stated that he finds it hard
to believe that towers do not impact the property value. He stated he finds
it strange that Mr. Austin’s client stated this doesn’t impact the area but
no developers put towers in their developments. Mr. Austin stated that we
should be careful of our biases and put them away concerning this issue. He
stated that that is one reason they use information from Sedgwick County
Les Mangus asked about the equipment buildings for 5 to 8
users. He stated there is nothing about the number of equipment buildings to
be built. Les Mangus also stated that not all carriers use building,
AT&T uses utility boxes. Mr. Austin stated that there would probably
only be three buildings, which are sheds. His clients have provided
buildings at other sites. Mr. Austin stated if this was a condition for the
conditional use his client could do this. Quentin Coon asked how big of
buildings were on the other sites. Mr. Austin stated they are 7 ½’ tall and
between a 12’ x 26’ building up to a 60’ x 60’ building.
Robertson asked if there are any members of the public who wish to speak on
Dennis Bush, 726 S. County Line Road, who lives adjacent
to the proposed tower site asked to address the subject. He stated that the
majority of the study appears to be in South Carolina. He stated we do not
live in South Carolina. The rest of the study is in Wichita. Mr. Bush
stated that we are not Wichita, we are in Andover and the types of houses in
the survey are not the type being built in Andover. He also pointed out that
a lot of the houses shown in Austin Miller’s information were duplexes and
condos. He stated that he feels the information was presented not to analyze
the information but to deceive. He stated there were no changes in values on
many of the properties presented in the Sedgwick County Appraiser’s
information. Mr. Bush stated that he is appealing a good many of his
appraisals in Sedgwick County and believes the information from that office
is, in many cases, not correct. Mr. Bush stated that his independent
appraiser has told him there will be a devaluation of his property of between
10 and 20 % due to a cellular tower being in the immediate area. Mr. Bush
stated that the people from Austin Miller provided information on older
homes, not new developments. Mr. Bush also stated that there is a tower that
has been approved by Sedgwick County across the street approximately ½ mile
away and asked why we would need another. He also stated that this type of
tower is not aesthetically appealing. Mr. Bush stated that this is a main
entryway into our community and asked if this is what we want people to see
the first thing when they come into Andover. He stated that he understands
we need to have the towers; however they just need to be in the right place.
He feels this is the wrong place. He feels a tower at this location could
place public health and safety at risk. He thinks children would climb the
fence and try to climb the tower. He stated a tower at this location would
be the first and last thing a person driving to and from his development
would see. He does not feel a tower should be next to a residential area.
He stated this area is going to be developed for $130,000 homes and this will
affect the value of the development. He asked that the committee look at
emergency access also. He stated that in an emergency the emergency vehicles
will have to get access through the Boat Shop property and that is a serious
concern after regular business hours. He asked that the city not allow this
eyesore on this property. He stated that as an adjacent landowner this will
affect the value of his property and Andover. Quentin Coon asked if the
proposed leased area would abut the Northeast corner of Mr. Bush’s property.
Mr. Bush answered yes.
Kaplan of 430 N. Market, Wichita, Kansas, spoke on behalf of the development,
Cottonwood Point. He stated that the Telecommunications Act of 1996 is
totally irrelevant to this application, notwithstanding all the information
the members had received. The Telecommunication Act of 1996 regulates
wireless communication providers not tower builders. The application before
the committee, from Brad Murray, L.L.C. is for a “spec” tower. This company
cannot demonstrate existing use as they have no client and no use. He wants
to build the tower in the hopes someone will lease his space. The essence of
City Zoning Regulations for towers enables you to take action and impose
conditions, which avoid proliferation of towers. Ask how to avoid
proliferation of towers. He asked that the commission take action to
minimize the number of towers. Mr. Kaplan asked if there is evidence of need
for a tower at this time. He stated there is not. Mr. Kaplan stated that
the Wichita Planning Commission approved a cellular tower for AT&T
immediately west, across 159th Street from the proposed location
of this tower. Wichita is requiring additional platforms for additional
users. There must be a minimum of three platforms on the tower; therefore,
if someone else comes along, they can use the AT&T tower. Mr. Kaplan
wanted to know if the tower being proposed was necessary if there is a tower
going up within ½ mile from the proposed tower. Mr. Kaplan stated that the
committee is not required to zone speculatively. He stated there is no
reason to approve a “spec” tower. He stated that Mr. Austin states this is
the highest and best use of this property. Mr. Kaplan states that what
should be considered is the overall injury to the community and adjoining
residential area, not the profitability to the applicant. Mr. Kaplan asked
that the committee require the applicant to come back with a signed user
agreement and come back with good and valuable reasons as to why their
clients cannot go on the AT&T tower being built in May.
Chairman Joe Robertson asked if there are any written communications or
petitions from the public. There was only the communication from Mr. Bush
that was given to the members before the hearing was opened.
RESPONSE TO PUBLIC COMMENTS:
Vice Chairman Joe Robertson asked if the applicant wished
to respond to the public comments. Mr. Tim Austin did wish to respond to the
public comments. He stated that Mr. Kaplan is not entirely accurate. The
AT&T location site was approved and relocated per the request of the City
of Wichita, however, protest petitions have been submitted and AT&T may
have to refile their case. Mr. Bush stated that there could be 8 buildings
on the site. No tower in town has 8 buildings on site. Mr. Austin stated
that the letter in the file from the Sedgwick County Appraiser supported his
firm’s position. Mr. Austin again stated that this is a perceptual issue.
This is not a Telecommunication Act issue. The only thing at issue here is
the Conditional Use with regards to the height of the tower. He stated that
this is indeed a speculative tower. He stated he is not an expert on cellular
towers; he is a consultant on land use. He feels his firm has demonstrated a
need for the land use. He asked that the committee focus on the rules of the
City of Andover.
Chairman Joe Robertson asked if anyone from the public wished to respond to
the applicant or make any final comments. Mr. Kaplan stated that he was
familiar with the AT&T tower approved by Metropolitan Area Planning
Commission. This decision is being appealed by Mr. Austin’s client.
AT&T representatives, Mr. Kaplan, and Mr. Austin’s people have met and
AT&T representatives stated they would move the tower to the west as they
do not want to negatively impact the development in the area.
CLOSE THE HEARING:
Hearing no further
public comments, Joe Robertson closed the public hearing at 8:55 p.m. There
would be no further public comments unless the Board wishes to ask questions
to clarify information.
APPEALS BOARD DELIBERATIONS:
The Board will now
deliberate the request. First, we need to determine if the request is one of
the uses under which the Zoning Regulations specifically authorize us to
grant a conditional use as an exception. Les Mangus stated that if you go to
the definition of maximum height, if you wish to exceed the maximum height of
60’ communication tower in a B-5 Zoning a conditional use must be applied
for. This request is to allow construction of a 199 foot self-support
communication tower at 1403 W. Ledgerwood Drive, Andover, Kansas on property
zoned as the B-5 Highway Business District.
whether the evidence presented supports the conclusions required by Section
10-108C, the Board considered appropriate findings of fact:
1. The proposed
conditional use complies with all applicable regulations, including lot size
requirements, bulk regulations, use limitations and performance standards;
unless a concurrent application is in process for a variance. The
consensus of the Commission is no.
2. The proposed
conditional use will not cause substantial injury to the value of other
property in the neighborhood. The Commission, after discussion, voted no,
vote was as follows: 3 for yes, 4 for no.
3. The location
and size of the conditional use, the nature and intensity of the operation
involved in or conducted in connection with it, and the location of the site
with respect to streets giving access to it are such that the conditional use
will not dominate the immediate neighborhood so as to prevent development and
use of neighboring property in accordance with the applicable zoning district
regulations. In determining whether the conditional use will so dominate the
immediate neighborhood, consideration shall be given to:
location, nature, size and height of buildings, structures, walls and fences
on the site; and after discussion the Commission voted no
b. The nature
and extent of landscaping and screening on the site. After discussion the
Commission voted no.
parking and loading areas will be provided in accordance with the standards
set forth in Article 5 of these regulations. Such areas will be screened
from adjoining residential uses and located so as to protect such residential
uses from injurious effects. After discussion the Commission voted yes.
utility, drainage and other such necessary facilities have been installed or
will be provided by platting, dedications and/or guarantees. After
discussion the Commission voted yes/true.
6. Adequate access roads, entrance and exit drives
and/or access control is available or will be provided by platting,
dedications and/or guarantees and shall be so designed to prevent traffic
hazards and to minimize traffic congestion in public streets and roads. After
discussion the Commission voted no. The applicant will have to go through
private property of a business, across the storage yard, to another set of
gates, to access the property. There is no written evidence of access. The
vote was 4 no, 3 yes.
discussed and reached conclusions on our findings, Joe Robertson called for a
motion and any conditions that might be attached:
Ron Roberts move to deny the conditional use application to exceed the 60’
height limitation, as requested for Case No. BZA-CU-2000-01 for the following
Lack of written evidence supporting a need for the additional height in this
Lack of conclusive evidence presented to indicate the effect on property
development and values in the area.
Lack of access through public roads and no presentation of a written evidence
of a grant of easement through private property adjacent to this property.
Heath seconded the motion.
There was discussion of the motion.
Joe Robertson asked if this could be a simple yes or no vote. Jim Orr asked
for staff recommendations on having reasons. Les Mangus stated that Norman
Manley, the City Attorney and Bickley Foster, the City Planning Consultant
request that reasons used by the Commission to base their decision be
repeated for the motion.
The motion passed by a unanimous
vote of 7-0 to deny the conditional use.
Joe Robertson thanked all of the
participants in this hearing and stated that everyone was welcome to stay for
the remainder of the meeting.
Robertson called for a five-minute recess at 9:35. After the recess, at
9:40 p.m. a motion was made by Lori Hays for adjournment of the Board of
Zoning Appeals and reconvenes the Planning Commission. Motion was seconded
by Quentin Coon. Motion carried 7-0.
Planning Commission reconvened at 9:41 p.m.