Albemarle County Planning Commission

June 3, 2008



The Albemarle County Planning Commission held a meeting and public hearing on Tuesday, June 3, 2008, at 6:00 p.m., at the County Office Building, Lane Auditorium, Second Floor, 401 McIntire Road, Charlottesville, Virginia.


Members attending were Marcia Joseph, Eric Strucko, Thomas Loach, Jon Cannon, Vice Chairman; Linda Porterfield and Calvin Morris, Chairman. Absent was Bill Edgerton.  Julia Monteith, AICP, non-voting representative for the University of Virginia was absent. 


Other officials present were John Shepherd, Manager of Zoning Administration; Megan Yaniglos, Senior Planner; Bill Fritz, Chief of Current Development and Greg Kamptner, Deputy County Attorney. 


Call to Order and Establish Quorum:


Mr. Morris called the regular meeting to order at 6:00 p.m. and established a quorum.


                Public Hearing Items:


SP-2008-00012 Embarq-Verizon Wireless- Tier III PWSF (Sign # 9 & 14)

PROPOSED: Co-location of a personal wireless service facility on an existing tower

ZONING CATEGORY/GENERAL USAGE: CO, Commercial Office; Industrial

SECTION: 23.2.2 [15] Special Use Permit, which allows for Tier III personal wireless service facilities in the CO Zoning District.

COMPREHENSIVE PLAN LAND USE: Office Service uses in Urban Area 2

LOCATION: Tax Map Parcel 61-129C: south side of Rio Road East [State Route 631], approximately 1/8 mile east of the intersection with Route 29 North, and near Fashion Square Mall.


(Megan Yaniglos)


SP-2008-00012 Embarq-Verizon Wireless- Tier III PWSF (Sign # 9 & 14)


Ms. Yaniglos presented a power-point presentation and summarized the staff report.  (See Staff Report and Power-Point Presentation)


·         This proposal is for the co-location of a personal wireless service facility on an existing tower.  The applicant is requesting the installation of an array of antennas on an existing 250’ tower that will not be flushed mounted.  Therefore, it requires a Tier III special use permit.  The site is located off of Rio Road adjacent to the Fashion Square Mall.  The proposal consists of a full sector array containing six panel antennas with the capability of expanding up to 12 total antennas.  The supporting ground equipment will be contained within a prefabricated equipment shelter at the base of the tower.  The antenna will be placed near the top of the tower at 240’.  There are currently approximately 4 array antennas, whip and flush mounted antennas and micro-wave dishes that are owned by other providers on the tower.  

·         The applicant is proposing an additional array antenna on the tower, which will require an amendment to the conditions of the previously approved special use permit that required that any additional antennas be flush mounted.  The County’s Personal Wireless Service Facilities Policy recommends against co-locations as well as array antennas and recommends the use of flush mounted antennas.  Although the existing monopole does have an already negative visual impact by adding an additional array at the top of the monopole, staff’s opinion is that it results in additional visual impact.

·         The applicant is also requesting modification of Section 5.1.40.c.4 and 5.1.40.c.5, which states that a tree conservation plan be submitted prior to the issuance of a building permit and that the installation, operation and maintenance be in accordance with the tree conservation plan.  There are no existing trees in the immediate vicinity of the facility that will be impacted.

·         The Architectural Review Board voted to allow staff to review and approve the application if an addition of the screening shrubbery currently proposed that the Entrance Corridor be provided street trees and some screening of the dumpster.

·         Staff has found that that the proposal is not consistent with the County’s Personal Wireless Service Facilities Policy, and therefore recommends denial.  If the Commission approves the personal wireless facility, the proposal will require the approval of modifications of Sections 5.1.40.c.4 and 5.1.40c.5 as well as the approval of the deletion of the provisions 3c from the previous approved special use permit that only flush mounted antennas be permitted.  Also, the applicant contacted staff today about changing the language for condition 5.  Those changes have been made.  Instead of the “permittee” they requested that if this application was approved that it be changed to “current owner and any subsequent owners of the tower.”


Mr. Cannon noted that he received a letter from the applicant that responds to some of the findings and the staff report.  He was trying to reconcile the staff findings with the contentions of the applicant.  Staff makes a finding that there will be additional visual impact from another array on the existing monopole.  At the same time staff says that there would not be a detriment to the adjacent property or a lack of harmony with the uses permitted by right in the district.  He was trying to put those two things together and understand the significance, if any, of the visual impact that staff detects.  There is additional visual impact because there is something that is going to be there that is not there now.  He asked if that was a significant or a material visual additional impact in staff’s view.


Ms. Yaniglos said that the way the analysis is done is that staff looks at Section 31 in the Wireless Policy.  In the Wireless Policy review staff found that it is going to have an adverse impact since an array was discouraged as being highly visible.  Staff did not think that it is going to be a significant detriment to the adjacent property because there are already existing arrays on that tower.


Mr. Cannon said that there is visual impact, which staff describes as an adverse impact but not detrimental to the adjacent properties.    He asked if it was a significant impact.


Mr. Fritz noted that there are two things that are going on here.  In Section it talks about whether or not it is a substantial detriment to adjacent properties.  Is it somehow going to infringe upon the ability to use an adjacent property?   Staff determined that it would not.  Is it going to change the character of the area?  Staff found that it would to an extent, but not significantly because there is already a facility there.  But, one of the other criteria is if it is consistent with the supplemental regulations and the Personal Wireless Policy.  That is where it comes in to say that visibility is the key to the Wireless Policy and while it may not have a substantial detrimental impact it is not going to infringe upon the ability of the adjacent property to be used.  It does have a visibility impact, which is discouraged in the Comprehensive Plan.  Since it is not being mitigated staff, cannot find that it is consistent with the Wireless Policy, the Comprehensive Plan and Section 5 of the supplemental regulations.  Therefore, staff is finding that it has additional adverse impacts as stated by the adopted Wireless Policy.


Mr. Cannon asked if a flush mounted antenna would not have adverse visual impacts.


Ms. Yaniglos replied no and pointed out that there was already an existing flush mounted antenna on the monopole.  The flush mounted antenna is only 12” from the face of the pole.


Mr. Cannon asked if the arrays look like candelabras, and Ms. Yaniglos agreed and that the proposed array would sit 10’ from the top of the tower.


Mr. Fritz pointed out that the Wireless Policy talks about if the facility is going to be visible, as is the case here, that it talks about methods to mitigate that impact.  Some of the techniques are utilizing an opportunity site and by using the design techniques such as the color flush mounting. 


Ms. Joseph asked if the proposal would be before the Planning Commission if it was for flush mounting.


Mr. Fritz replied that it would still be before the Planning Commission as a Tier III facility.


Mr. Strucko asked if staff’s opinion would change, and Ms. Yaniglos replied yes.


Mr. Cannon asked if staff encourages co-location.


Mr. Fritz replied that it was complex.  The staff report says that from a visibility perspective co-location should be discouraged.  By co-locating there can be cumulative effects that cause adverse visual impacts.  The Wireless Policy also identifies this as an opportunity site, which the policy encourages.  But, it does so in such a way as saying that merely the fact that it is an opportunity site does not trump everything else.  By having bad design adverse visual impacts are created and visibility is the guiding principle of the Wireless Policy.  That is why staff is not able to support the request.


Ms. Porterfield asked if the applicant can achieve the same results with flush mounted antennas that they could with the array.


Mr. Fritz suggested that they ask the applicant.  But, that is not a component of staff’s review at all.  The component of staff’s review is what are the visibility impacts caused by the proposal.  If they get lesser coverage area, for example, by bringing it down and using an alternative antennae technique, they may need to have more sites.  That was recommended by the Wireless Policy.  The Wireless Policy also says that they are going to review those other sites to see whether they have adverse visual impacts and mitigate it that way.  Staff does not look at that and can’t answer the question.


Ms. Joseph asked how many 250’ towers are located in the county.


Mr. Fritz replied that he did not know, but there are not a lot.  This is actually pretty indicative of a maturing wireless network.  The wireless facilities shown on this particular facility are not at the top.  What they do is as the system matures they need to lower it to shrink the coverage area so it does not bleed into the other cells.  When this particular facility was first used everybody was up at the top, but has been coming down and lowering over the years.  As Verizon gets more sites they may have to lower this particular one, but that is not what is before the Planning Commission now.


Mr. Kamptner requested to ask a question regarding Mr. Sipe’s letter.  They are proposing to remove the existing mount, which would be about 10’ above where they propose to put the array.  He asked if that factored into staff’s impact analysis.  Also, is that just a mounting structure and there are no antennas attached to that one.


Mr. Fritz replied that there are no antennas.


Mr. Cannon questioned the size of the mount.


Mr. Morris suggested that they get that information from the applicant.  He opened the public hearing and invited the applicant to address the Planning Commission.


Maynard Sipe, representative for Verizon Wireless and attorney with LeClair Ryan noted that also attending tonight are Mathew Winstead and Stephen Waller, consultants to Verizon.  Verizon Wireless is seeking to have the same opportunity as other carriers have been given to provide quality wireless service to this particular area of the county.  He presented a power-point presentation and explained the proposal, as follows.


·         The Wireless Policy, as discussed, favors using existing structures that are called opportunity sites.  There is no disagreement that this is an opportunity site.  There is language that discourages the full sector arrays, but it does not bar them.  The Policy does not deal in absolutes, which he thought that was partly because it is a policy that means it is general in nature.  It is not intended to address every unique situation or every site because of particular conditions on that site.  That leads to why they have the special use permit review.  A site specific evaluation is always necessary on these types of applications, in particular on cell phone tower applications like this due to the Telecommunications Act. 

·         The first unique factor about this site is demand. This site is anticipated to have a high demand.  That is self evident because of the volume of users who will be in the area of the Route 29 and Rio Road intersection. It is also intended to serve some residents and businesses in the area.  Verizon Wireless is not just targeting the mobile user in their car, but also trying to provide broad band and other services to in-building users, which are businesses and residences.  This demand is what really calls for the need of a full array.  It actually responds to the demand.  The full arrays are needed for technical reasons in order to respond to that demand.  The full array is not needed to provide coverage.  The footprint from the coverage from this tower is not different with the full array than it might be with the flush mount.  The difference is the capacity of calls that they will be able to handle and the quality of the signal.  A full array allows that the flush mounts do not allow is for spatial diversity.  By having the multiple antenna panels on the array the antennas are set somewhat apart and that allows multiple antennas to receive the signal coming to them so that they can overcome issues from interference of the fading in and out of the signal. There is more than one antenna possible handling that.  They have to be space ably diverse so they are not in the same exact line of site for the signal.  It does reflect on the quality of the wireless service that they can provide to this area.  The visual impact has been discussed, which is there already.  That is a fundamental premise to keep in mind.  The visibility of the proposed array is mitigated by several factors, which is outlined in the letter to the Planning Commission dated May 30, 2008.  They think that they are important. 

·         Staff had done the review with the special use permit criteria, which Mr. Cannon asked about.  He felt that it was important that staff found that they meet the special use permit criteria.  If the visual impact was significant enough, he did not think that they would be able to meet those criteria.  But, they do in this case.  He presented the proposed landscape plan, which Verizon Wireless is offering to do as part of the special use permit.  The Architectural Review Board found no significant impact on the Entrance Corridor.  The ARB did have a concern about screening the ground equipment. 

·         He asked the Planning Commission to approve the request with two additional conditions.  One condition makes a reference to the landscape plan, which was handed out.  It requires administrative approval by staff because there may be some slight changes in the specifics of it.   The second is that they are willing to agree that the proposed array will not project further from the monopole than the existing arrays already on the tower.  Therefore, they are limiting how far the array will project out from the monopole.  That condition was in place with the Carrsbrook application recently approved and they felt it was appropriate for this application as well.  He suggested that the condition state that the array would not project further than the widest array.  The existing arrays do not differ that much in the size even though they look different in the photos.


Ms. Porterfield asked if there arrays currently on the monopole for other wireless providers.


Mr. Sipe replied yes, that the current providers on the monopole include AT&T, Ntelos, Nextel, ALLTEL, U.S. Cellular, Embarq and Team Mobile. 


Mr. Loach said that he said they could use flush mounted antennas, but this was better from a technical perspective.  He asked from the flush mount to this array what the factor of improvement was that they would get from not using flush mounted antennas.


Mr. Sipe replied that he could not answer the question because it was so technical.  But, the demand as noted previously was self evident.  They feel the full array is necessary to accommodate the demand.  He was told by their engineer that if they don’t have approval of the full array they will need additional sites in this immediate area.   Of course, those additional sites will have some impacts potentially.


Mr. Cannon asked if they were to approve this with the panel array there would not be the necessity for additional sites in this immediate area, and Mr. Sipe replied yes.


Matt Winstead, project manager for Verizon Wireless, said that it would be at least double, but did not know for sure.  Their engineer would have a better answer.  It is not necessarily a capacity issue because the engineer explained that they could get the same number of calls with flush mount, but the signal quality with the additional calls would diminish.  With more callers on the line at one time the multiple antennas will be able to receive all of those calls at once with more quality so that there is no degrading of signal.  This area is so well developed that it is going to have high usage as soon as the network comes on line.  This location is a good option for Verizon Wireless.


Ms. Porterfield asked if it had to be mounted at this height.


Mr. Winstead replied that their engineer had explained that they were trying to cover a larger area than most of their treetop facilities.  That is why the full array is also needed in order to avoid having to build other towers.


Mr. Sipe said that there is obviously some concern for visibility for this existing tower. He asked the Planning Commission to draw a clear distinction between this existing tower and their proposal and its additional impact.  In this case the incremental change in the visual impact proposed by their array is really not significant enough to warrant discrimination against Verizon Wireless as opposed to the other carriers who have been allowed to locate on this tower.  He requested the Commission’s recommendation of approval so they can provide the quality of service to this area.


Mr. Morris invited public comment.  There being none, he closed the public hearing to bring the matter before the Commission.


Mr. Strucko asked staff if the applicant’s proposal to remove the top mounting bracket factor into their opinion regarding the visual impact.


Ms. Yaniglos replied that it did not.  She was strictly looking at the arrays. 


Ms. Porterfield asked if staff was literally going with what is in the ordinance.


Ms. Yaniglos said that staff went by what is in the Wireless Policy and the ordinance.


Ms. Joseph said that there was a reason in the original special use permit approval that would have to be changed for this tower because they were asking for a flush mounted because it is less visible.  They are not being discriminatory in this if they would allow it for flush mounted antennas.  She agreed with staff that it would be a lot more visible unless they decided to use flush mounted antennas.  She recalled Charlotte Humphries asking how this tower got out there.  But, since it is non-conforming they have to deal with it the best they can.  She would like to deal with it with flush mounted instead of the arrays.


Mr. Strucko agreed with Ms. Joseph.   His line of questioning was to try to get at mitigation.  He believed that a bad situation could be made worse by continuing to heap on to it.  One more array will make a bad situation worse.  He could accept this proposal if indeed the top bracket was removed and the array was roughly the same size as the bracket since the net visual impact would be zero.  But condition 11 tells them that it is not going to be, but would be a wider array than the mounting bracket itself.  Therefore, he would not be supportive for this proposal for the reasons already expressed by Ms. Joseph.  He questioned what an array gets us that a flush mount would not, which was brought up by Mr. Loach.


Mr. Loach noted that he did not get a feeling from the previous discussion that the full array was going to create a factor far above that which he would trade the visual impact from the flush mounted array.  


Motion:  Mr. Cannon moved for approval of amendment of the SP-2008-00012, Embarq-Verizon Wireless- Tier III PWSF, to permit the array proposed by the applicant on this tower with the conditions as identified in the staff report on pages 9 and 10 with the 2 additional conditions as submitted by the applicant, including conditions 10 and 11, as amended that no antennas shall project from the monopole to a distance that is greater than the narrowest existing antenna array.


Ms. Yaniglos pointed out that staff had amended condition 5 to state “that the current owner and any subsequent owners of the tower” to replace “the permitee.”


Mr. Cannon added to the motion with the amendment to condition 5.


Mr. Strucko questioned the change to condition 11 because he thought the applicant had stated the widest.


Mr. Cannon agreed that the applicant proposed the widest. But, he felt that the language is inconclusive.  He was substituting a more restrictive interpretation, which was consistent with the visual representation that the applicant provided of the likely visual affect of the array.  If the applicant could not accept that condition, then he would withdraw the motion.


Ms. Porterfield noted that the motion was to approve the array as presented by the applicant, except that it can be no larger than the smallest array on the pole.  They are not flush mounting, but it would be an array.


Mr. Sipe responded that the Commission has the right to replace conditions.  For clarity he suggested using the term “full sectored panel antennae array.”


Mr. Cannon asked if that means to exclude flush mounted arrays.


Mr. Sipe asked that the condition be made clearer so that this does not include flush mounted arrays. 


Mr. Cannon asked if the 5 candelabras were accurately described.


Mr. Sipe replied that it was “full sector panel antennae arrays.”


Mr. Cannon noted that was his intent.


Mr. Morris asked if this could be made effective and keep it within the size of the current bracket.


Mr. Sipe replied that he did not have the measurements of the current bracket.  To tie that down he suggested noting that it was the 5 existing full sectored panel antennae arrays.  That would tie them to the 5 that is seen on the tower today.  Condition 5 helps clarify the type of antenna array they are talking about.


Mr. Kamptner referred the Commission to page 29.  The current top full sectored antenna array appears to be much closer to the pole than the other four.


Mr. Cannon noted that it appeared to be the same size, but not significantly.


Mr. Morris agreed that it was hard to distinguish it.


Mr. Fritz noted that there are five existing arrays.  The way it is written staff would interpret that the smallest of those is the one they would use.


Mr. Strucko asked what a mounting bracket is used for. He asked if the mounting bracket could be reinstalled without any action by the Commission.


Mr. Fritz replied that he did not think that the existing brackets could be reused with the existing conditions.  He did not know if the applicant could reuse the mounting brackets.  He did not know the conditions of it and whether it was compatible with the proposed antennae type or the holes for the mounting brackets.  He could not guarantee that the mounting brackets could be reused.


Mr. Strucko asked if this application would prevent the reinstallation of that mounting bracket.  He noted that the applicant could remove it, but could he put it back.


Mr. Fritz replied that if the special use permit was not approved, the answer is no.


Mr. Cannon pointed out that was his motion.


Mr. Morris restated the motion for approval with conditions as set forth by the staff 1-9 with the modifications of condition 5 and the addition of conditions 10 and 11 with further modification of condition 11.


Mr. Cannon noted that condition 11 would be that no antennas shall project from the monopole to a distance that is greater than that of the narrowest of the five existing full sector panel antennae arrays on the pole.


Mr. Strucko asked if the motion should include a statement about removing the bracket.


Mr. Cannon added that the applicant shall remove the bracket at the top of the pole as shown in the staff report.


Mr. Fritz recommended the condition read that the existing mounting bracket to be removed as shown on Attachment A.


Mr. Cannon amended the condition to adopt Mr. Fritz’s version.


Ms. Porterfield seconded the motion.


As summarized in the action memo the Planning Commission took the following action:


Motion: Mr. Cannon moved, Ms. Porterfield seconded for approval of SP-2008-012, Embarq-Verizon Wireless – Tier III PWSF to permit the array proposed by the applicant on this tower with conditions 1 - 9 recommended by staff, as amended in condition 5, and with the two (2) additional conditions submitted by the applicant, as modified.


  1.  The tower shall not be increased in height;


  1. All antennae, dishes and their replacements attached to the tower shall be used for personal wireless service providers;


  1. Additional and replacement antenna arrays may be attached only as follows:
    1. Omni-directional or whip antennas shall not exceed twenty (20) feet in height or seven (7) inches in diameter, and shall be of a color that matches the tower;
    2. Directional or panel antennas shall not exceed seven (7) feet in height or two (2) feet in width, and shall be of a color that matches the tower;
    3. Existing arrays of directional and panel antennas that are mounted with brackets that separate them by more than (12) inches from the structure may remain. This condition shall not pertain to the maintenance and/or replacement of a single panel antenna that malfunctions or is in need of repair.


  1. Not more than six (6) satellite or microwave dishes may be attached to the tower at one time, and only as follows.
    1. The existing six (6) foot diameter grid dish that is subject to this request may be replaced by the specified six (6) foot diameter High Performance dish at a height that is not more than 95.5 feet;
    2. Other existing satellite and microwave dishes may be replaced on the tower by the same type of dish, provided that the diameter of the replacement dish does not exceed the diameter of the dish being removed, the color of the replacement dish matches the tower, and the mounting height does not exceed that of the dish being replaced;
    3. Other existing satellite and microwave dishes may be replaced on the tower by a different type of dish if the mounting height is no less than twenty (20) feet below that of the dish being removed, the diameter of the replacement dish does not exceed that of the dish being removed, and the color of the replacement dish matches the tower;
    4. Other existing satellite and microwave dishes may be replaced by a different type of dish if the proposed mounting height of the replacement dish does not satisfy the height requirements of condition 4c with the written approval of the Zoning Administrator.  This approval shall only be granted after the submission of a microwave path survey indicating that the proposed replacement dish will be mounted at the lowest possible height that allows the system to function.  In such a case, the path survey shall demonstrate the reason(s) why the proposed height is the lowest possible height, but in no case shall the replacement be higher than the dish it is replacing;
    5. All replacement satellite or microwave dishes shall be mounted as close to the face of the pole as structurally and mechanically possible and, in no case, shall the distance between the back of the dish and the face of the pole be greater than eighteen (18) inches; and
    6. Prior to the issuance of a building permit for replacing a dish, the applicant shall provide engineered drawings demonstrating the dimensions of the existing dish to be removed and its replacement dish, and additional information demonstrating the mounting distance between the pole and the dish to the Department of Building Code and Zoning Services.


5.        The current owner and any subsequent owners of the tower shall submit a report to the Zoning Administrator once (1) per year, by not later than July 1 of that year.  The report shall identify each user of the tower and that each user is a personal wireless communications service provider;


  1. The permittee shall comply with Section 5.1.12c of the Zoning Ordinance; and


  1. The facility shall be disassembled and removed from the site within ninety (90) days of the date its use for personal wireless communications services purposes is discontinued.  If the Zoning Administrator determines at any time that surety is required to guarantee that the facility will be removed as required, the permittee shall furnish to the Zoning Administrator a certified check, a bond with surety satisfactory to the County, or a letter of credit satisfactory to the County, in an amount sufficient for, and conditioned upon, the removal of the facility.  The type of surety guarantee shall be to the satisfaction of the Zoning Administrator and the County Attorney.


  1. All work shall be done in general accord with what is described in the applicant's request and site construction plans, entitled “Rio Road, Embarq Property”, with a final zoning drawing submittal date of 3/10/2008.  


  1. The following shall be submitted to the agent after installation of the antenna is completed and prior to issuance of a certificate of occupancy: (i) certification by a registered surveyor stating the height of the antenna, measured both in feet above ground level and in elevation above mean sea level, using the benchmarks or reference datum identified


  1. The applicant shall provide landscaping along Rio Road East generally as shown on the Landscape Plan by J. Thomas Dalton sealed 5-21-08, with a final landscaping plan to be administratively approved by staff.


  1. No antennas shall project from the monopole to a distance that is greater than that of the narrowest of the five (5) existing full sector panel antennae arrays on the pole.  The existing mounting bracket to be removed as shown on Attachment A.


The motion was approved by a vote of 4:2. (Mr. Morris, Mr. Cannon, Ms. Porterfield and Mr. Strucko voted aye.)  (Mr. Loach and Ms. Joseph voted nay.)   (Mr. Edgerton was absent.)


Mr. Strucko supported the motion with the removal of the mounting bracket and the limitations on the array.


Mr. Morris said that SP-2008-012, Embarq-Verizon Wireless Tier III PWSF will go before the Board of Supervisors on July 2 with a recommendation for approval.


Action on the Modifications:


Motion: Mr. Cannon moved, Ms. Porterfield seconded to approve the two (2) waivers for SP-2008-012 Embarq-Verizon Wireless – Tier III PWSF, as follows.


Zoning Ordinance Waivers:

  1. Section 5.1.40 (c)(4)- Requirement for a tree conservation plan to be submitted prior to the issuance of a building permit.
  2. Section 5.1.40 (c)(5)- The installation, operation and maintenance of the facility to be conducted in accordance with the tree conservation plan.


Ms. Joseph asked if this would include the landscape plan that was just distributed by the applicant.


Mr. Fritz replied yes, that was in condition 10.


The motion was approved by a vote of 6:0.  (Mr. Edgerton was absent.)


Mr. Morris noted that the modifications were approved.


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