Durham INC

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InterNeighborhood Council of Durham Committee

on Zoning and Land Use

Draft Suggestions for New Durham UDO WCF Regulations

ed. 6, January 1, 2014

Introduction

 

Since the publication of the Durham City-County Planning Department’s proposed revisions to the Durham Unified Development Ordinance as it pertains to wireless communications facilities (WCFs), the Durham INC Zoning and Land Use Committee has been working on comments and proposals for the effective regulation of such facilities in a way which reasonably balances the interests of WCF operators and stakeholders most often concerned about WCF placement.  Although the committee’s approach differed significantly from the department’s initial draft, the department’s most recent version of the rules indicates some points of conversion – especially in the area of approval procedures.

 

In this process, committee members have met with industry representatives and critics to learn more about WCFs and the issues associated with them.  We have consulted ordinances in other communities to better understand the scope of regulatory schemes which govern this unique type of use.  From the industry we learned that growing demand requires more and taller WCFs.  The industry, while not opposed to regulation, prefers an administrative application and approval process which does not require long delays, potentially contentious public hearings, and discretionary decision-making based upon broad standards which, to the industry, may seem subjective.  From the residential stakeholders most often opposed to WCFs, we learned that the key issue is proximity.  When a proposed WCF is located in or near a residential neighborhood, issues relating to height and compatibility become important.  In these situations, neighbors expect advance notice and an opportunity to be heard.  When a WCF is proposed for a site some distance away from a residential neighborhood, these concerns diminish.

 

With these interests and concerns in mind, the INC committee has focused on a regulatory scheme which increases substantive requirements and procedural safeguards for WCFs proposed for residential areas while it reduces dimensional requirements and streamlines approval procedures in areas classified as non-residential.  The WCF regulations reposed in the UDO currently turn on the distinction whether a proposed WCF is “concealed” or not.  Those which are not concealed must go through the use permit process before the board of adjustment while WCFs which are “concealed” must satisfy a staff-only administrative review.  The INC committee determined that the concealed vs. non-concealed distinction fails to address either industry interests or neighborhood concerns.

 

Instead, the committee divided the county’s land mass into two principal regulatory areas, residential and non-residential.  The residential area includes all property included within a residential zoning district except areas zoned Rural Residential in the Rural Tier.  Also included within the residential area is property not located within a residential district, but within 450 feet of such a district.  The non-residential area includes all remaining property.  Each of the residential and non-residential areas covers a rough half of the county’s total land area.

 

The INC committee’s regulatory scheme would require a minor use permit for all free-standing WCFs in the residential area.  WCFs proposed for the residential area would be limited to 120 feet in height.  In the non-residential area, only administrative approval would be required for free-standing WCFs up to 180 feet in height.  WCFs taller than 180 feet would require a use permit. In the committee’s scheme, WCF concealment becomes a factor in the determination of compatibility and no longer determines the form of approval procedure.  The Planning Department’s most recent draft takes a similar approach.

 

The INC committee’s proposal follows in greater detail below.  It should be read as a modification of the department’s proposed rules and not a wholesale substitution.

 

Approval Procedures

1) Minor special use permit required for all freestanding WCFs

in all R zones.

 

2) Minor special use permit required for all freestanding WCFs in non-R zoned property which is within 450 feet of any R-zoned property.

3) Minor special use permit required for all free-standing WCFs more than 180 ft. tall.

 

4) Staff-only administrative approval only required for all free-standing WCFs below 180 ft. in non-R zones (including the RR zone in the Rural tier) except in cases when, in a non-R zone the applicant seeks a reduction in the setback as provided for herein.

5) Staff-only administrative approval only required for attached WCFs in both R and non-R zones; however, an attached WCFs in an R zone shall be no higher than 20 feet above the building or structure to which the WCF is attached and the WCF shall substantially match the building or structure in design and color.

6) Minor special use permit required when a WCF applicant desires to reduce the 450-foot setback required for WCFs in the RR zone in the rural tier or when an applicant desires to reduce, adjust, or eliminate the buffer required for a WCF in that zone and tier.  See Special Setback and Buffer Requirements for WCFs in the RR zone in the Rural Tier, sections (1) and (2).

7) A substantial modification to an existing WCF (per G.S. sections 160A-400.51(7a) and 153A-349.51(7a) and the presumptions set out herein, shall require an application accompanied by a site plan and shall be subject to approval by the authority which was authorized to approve the host wireless structure according to its location or it proposed height as modified.

 

Special Requirements for WCFs in R Zones

 

1) Maximum height of WCFs in R zones shall be 120 ft.iii

2) Setbacks for WCFs in R zone properties shall be 300 ft. from the property line of the host property.  This setback shall not be reduced.  Setbacks from buildings located on the host property in R zones shall be 100 ft. or 120% of the height of the tower whichever is greater; however, the Board of Adjustment may reduce the setback separating a WCF and a non-residential building located on the host parcel when it can be demonstrated that a shorter setback is consistent with the public health, safety, and welfare and the WCF as located otherwise satisfies the standards for a special use permit.

3) The maximum compound or ground area for a free-standing WCF, exclusive of drives and access roads shall be 10,000 sq. ft.

4) Equipment within the ground area shall be fenced or walled with an 8 ft. opaque fence.

5) The fenced area shall be surrounded by a vegetative buffer of at least 10 ft. in width.  The plantings shall achieve 60% opacity.  If, however, the WCF is located on a host parcel which already has a fully conforming buffer (whether it be a wall, fence, or plantings, which equals or exceeds the 60% opacity requirement) in place that separates the WCF and neighboring residential uses, then the Board of Adjustment may adjust, reduce, or eliminate the vegetative buffer requirement for the WCF itself.

6) Utility lines serving WCFs shall be buried wherever practicable.

7) Testing of generators serving WCFs in R zones shall be conducted only between the hours of 10:00 a.m. and 4:00 p.m.

 

Special Setback and Buffer Requirements for WCFs in the RR Zone in the Rural Tier

 

1) A free-standing WCF located within the rural tier RR zone shall not be sited closer than 450 feet or the 120% of the height of the tower, whichever distance may be greater, to the property line of the host property.  Within the host property, there shall be no minimum setback between the WCF and any other structure or building.  The Board of Adjustment may by means of a special use permit, modify the 450-foot setback requirement.  The board may not reduce the 300-foot setback requirement in the 450 foot-wide belt surrounding R zoned property inasmuch as this belt is considered to be part of the area designated as R zoned.

2) Equipment within the ground area shall be fenced or walled with an 8 ft. opaque fence. The fenced area shall be surrounded by a vegetative buffer of at least 10 ft. in width.  The plantings shall achieve 60% opacity.  If, however, the WCF is located on a host parcel which already has a fully conforming buffer (whether it be a wall, fence, or plantings, which equals or exceeds the 60% opacity requirement) in place that separates the WCF and neighboring residential uses, then the Board of Adjustment may adjust, reduce, or eliminate the vegetative buffer requirement for the WCF itself.

 

When a Minor Special Use Permit is Required

 

1) The applicant shall perform a balloon test demonstrating the height of the tower (and any antennae or other array suspended on the tower) in its proposed location.  See requirements for balloon tests below.

2) A free standing WCF approved by the Board of Adjustment shall be the least visually obtrusive among the options available and each site under consideration shall be considered individually to determine the proposed WCF’s compatibility with the particular location in question, existing uses, nearby buildings and other structures, the surrounding landscape, and the applicable zoning regulations and adopted land- use priorities.

3)  The notification radius for hearings before the Board of Adjustment for all WCFs shall be 600 feet.

 

Presumptions Concerning Substantial Modifications to the Height of a WCF

 

1) When a WCF is shorter than the maximum height established for its location, whether by a provision in the UDO, by a condition of a use permit, or by a commitment in a development plan, an increase in the height of the WCF which is less than 10% of the original height of the WCF when first erected or the height of one additional antenna array not exceeding 20 feet shall be not be presumed to be a substantial modification of the WCF so long as the resulting height of the WCF as modified does not exceed the maximum height for the WCF established for its location.

2) Any allowable modification to a WCF which is presumed to be insubstantial must nevertheless comply with applicable safety, land use, and aesthetic and design requirements, including those established as conditions to a use permit.

3) Any change to a WCF which would cause the WCF to exceed the maximum height established for its location shall be presumed to be a substantial modification and shall not be allowed.  This presumption is based upon the fact that a WCF taller than 120 feet in an R zone cannot be made compatible with surrounding and nearby uses and the extension of a WCF beyond the maximum height would deprive the affected neighboring citizens of notice and an opportunity to be heard.  Further it would deprive the Board of Adjustment, applying the standards set out in the UDO an opportunity to determine whether such an extension is consistent with considerations of public health, safety, and welfare and the aesthetic standards of the community.  Likewise, an extension of a tower located outside the R-zone area beyond 180 feet would trigger the right of neighboring citizens to notice and a hearing before the Board of Adjustment.  Consequently, any extension of a tower beyond the 180 foot limit must be presumed to be substantial and can be permitted only by means of a use permit issued by the board.

 

Other Provisions

 

1) All free-standing WCFs shall be insured in an amount not less than $1,000,000 against liability for injury, damage, or loss caused by the erection, operation, or failure of the WCF.  Insurance shall be maintained for the life of the WCF.

2) WCFs proposed for local historic districts in R zones shall obtain a major COA for the Historic Preservation Commission and use permit from the Board of Adjustment.  Those proposed for non-R zones shall obtain a use permit from the Board of Adjustment only.

3) WCFs may be excluded or further regulated from NPO districts and from any parcel or parcels by means of a design commitment in a development plan.

4) WCFs shall not be located within a distance equivalent to either 120% of the height of the structure or 200 feet, whichever may be greater, to any natural gas transmission or distribution lines 6” in diameter or larger.

5) No buildings designed for human occupation or habitation may be located within the setback required for any WCF.

6) Measurement of free-standing WCF height shall include the platform or base upon which the supporting structure or tower may be sited and any antennae or other array attached to the tower, but not a lightning rod as contemplated in note iii, below.

7) The City-County Planning Department shall obtain an independent third-party review of any application for a free-standing WCF in an R-zone and may obtain such a review for an application for any other WCF when, in the discretion of the department, such review is desirable.  The department may assess the cost of such review to the applicant within the limits established by law.

8) In non-R zones, including the RR zone in the Rural Tier, a balloon test shall be required only if requested by the City-County Planning Department. See Balloon Tests below.

9) The locations of all WCFs shall be noted on a map or maps maintained by the Planning Department.  Each WCF located on the map shall be identified in such a way that public files and records concerning the WCF can be identified.

10) The name and contact information of the owner of the WCF shall be prominently displayed at the WCF location.  Also, a signs warning of danger from electrocution and emissions shall be posted at the location.

12) A WCF designed to resemble a tree shall be located within a stand of trees so that the tower reasonably appears to be part of the stand of trees.   The WCF so designed shall not exceed the height of the tallest trees within the stand of trees by 25 feet.  Only trees located within 100 feet of the WCF shall constitute a stand of trees for the purpose of this provision.  A stand of trees shall include no fewer than 25 trees taller than 40 feet.  The stand of trees shall not include trees which are removed or die as a result of the erection of the WCF.  Only monopole-type WCFs may be designed to resemble trees.

 

Balloon Tests

 

1) The applicant shall conduct a balloon test prior to the scheduled hearing before the Board of Adjustment or, in the case of a test required by the Planning Department, on such dates as the department may require.  The applicant shall fly or raise upon a temporary mast with stabilizers, a brightly colored red or orange balloon, a minimum of 10’3” in length, at the maximum height of the proposed new WCF. The balloon shall be raised within 25 feet of the proposed WCF’s location. The test shall be conducted on at least two days.  The initial test date shall be not later than 30 days before the date of the hearing before the Board of Adjustment.  The second test shall be conducted not more than five days following the date of the initial test.  The balloon test shall be flown for at least four consecutive daylight hours on the dates chosen. The initial date for the balloon test shall be on a weekend (excluding legal holidays), but to prevent delays in application, the second date may be a weekday.  When the test is performed at the request of the Planning Department, the department may waive the second test.

2) No less than 14 days in advance of the initial test date,  a notice of the dates times, and location of the balloon tests and an applicant’s phone number shall be mailed, return receipt requested, by the applicant, to all persons owning property within 600 feet of the property lines of the proposed tower’s parent lot.  Deed records, maps, and tax records of Durham County shall be used as the source for determining which property owners shall receive notice of the balloon tests.

3) The applicant shall inform the Planning Department, in writing, of the dates and times of the balloon test at least 21days in advance.

4) The applicant shall post a sign or signs on the proposed site property at location(s) determined by Planning Department.  The sign(s) shall give the contact information of the Planning Department, the proposed dates, times, and location of the balloon test. The sign(s) shall measure no less than 5 sq. ft. in area and be posted at least 14 days before initial test date.

5) The applicant shall supply pictures of the balloon test’s results from all directions of east, north, south, and west of the proposed tower’s location at distances equal to the applicable WCF setback and 1/2 the distance of the WCF setback.  The applicant shall, upon request, also submit photos from other locations such as property lines, roadways, major view corridors, nearby residences, historic sites, and other locations deemed necessary by the Planning Department and/ or by written requests from notified residents, received by Planning Department at least 24 hours before the initial test date.  Also, the applicant shall submit photographs with the proposed tower and associated antennas superimposed upon them showing what the WCF will look like from all required locations, to be used to assess the visual impact of the proposed WCF by the approval authority.  The report shall also include photographs and comments submitted by interested citizens.

6) The results of the balloon test shall be submitted to the Planning Department.  When a balloon test is performed in connection with an application for a use permit, the results of the test and all of the evidence connected to the test shall also be submitted to the Board of Adjustment.  The Board of Adjustment shall determine whether the requirements of the test have been satisfied.

 

WCF Inspections

 

1) Upon completion of a new WCF or modification of an existing WCF approved according to the provisions pursuant to this ordinance, the owner(s) shall submit to the City-County Inspections Division a report by a qualified engineer certifying the new or modified WCF’s structural and electrical integrity and that it complies with all applicable local,  state, federal and industry standards mandating structural and electrical integrity of WCF equipment and the protection of the health and safety of the public on the part of the WCF industry.  The Inspections Division shall have the right to request and receive from the owner(s) of any new or modified WCF additional inspection reports and may carry out unscheduled inspections of its own.  Failure of owner (s) to remediate reported out of compliance components of or performance of a WCF within 90 days of Inspections Division’s written notice shall result in an order that authorization to operate is suspended at the flawed site (For WCFs approved per special use, that permit is suspended). If the WCF remains un-remediated and out-of-service/unused for 9 months from the first notice to remediate, it shall be deemed abandoned and be removed at the owner’s expense.

2) The owner or operator of a free-standing WCF shall provide a bond in favor of the approving jurisdiction in the amount of 110% of the estimated cost of removal to provide for the removal of a WCF which is damaged to an extent equal to or greater than one-half its replacement cost, or so unsafe that it poses a real and imminent threat or risk of harm or is deemed abandoned. A WCF is deemed abandoned if it is unused or out of service for nine months.

 

General Submittal Requirements

 

WCFs shall be located and co-located in such a manner to minimize adverse visual and aesthetic impacts on the land, property, buildings, and other facilities and the existing uses surrounding a proposed location and to have no adverse effects to public safety and the natural environment and wildlife of the area being served.  All WCFs shall satisfy all applicable public safety, land use, or zoning requirements of the UDO and applicable law, including aesthetics, landscaping, land-use based location priorities, structural design requirements, and setbacks.

 

Application Requirements

 

1) In addition to complying with the requirements of Section 3.7 Site Plan Review and Section 3.9.8 A, B, Special Use Permit (if required), the following information must also be supplied and the following provisions must be met for a completed application for new construction or modification of a WCF and/or compound:

a) The applicant shall identify the users or tenants for the WCF.

b) The applicant shall provide documentation to substantiate that it has the right to proceed as proposed on the WCF site in the form of an executed copy of a contract or lease with the landowner or landlord. If an applicant owns the site a copy of the ownership deed is required.

c) The applicant shall provide a written explanation demonstrating how the proposed tower will be designed and placed to minimize visual intrusiveness to the surrounding properties in the area. Criteria that may be used for evidence: location, height, configuration/design, mass and/or scale, materials and color, illumination of the WCF.  Also relevant in the statement would be the type, size and quantity of existing trees surrounding the proposed support structure or tower, the distance from a main road, the offsetting of the tower placement from the center of the service road, the proximity of the support structure and the equipment compound to residential dwellings, and the local topography.

d) The applicant shall provide the certification of an appropriately licensed professional engineer that the WCF support structure shall have the strength and integrity to support the loads to be applied to it and that the support structure, antenna arrays, and all other accessories included in the compound, conform to or exceed the minimum standards promulgated by the American National Standards Institute (as amended from time to time) or the standards set out in TIAEIA 222 (as those standards may be amended from time to time), whichever may be the more strict, and any other applicable federal, state and local building,  health and safety codes.  Following approval, WCFs shall not be operated in a way which is inconsistent with these standards.

e) The applicant shall provide the number, height, make, model and manufacturer of the tower and proposed antenna(s) and power levels of proposed site shall be submitted. This will include documentation establishing the azimuth, size, and centerline height location of all proposed and existing antennas on the structure and a copy of the applicable specification sheet(s).

f) The applicant shall supply a report of diligent efforts to first place WCF by collocation on an existing structure.  The hierarchy for new construction is as follows:  number one, public/government lands in non-R zones; two, industrial and/or commercial non-R zones; three, public/government lands in R zones; four, rural residential zone (outside the suburban tier); and five, R zones.

g) The applicant shall describe the search ring used in finding the proposed site.

 

1 For the purposes of this document, the term “WCF” shall mean a wireless communications facility, the equipment necessary to make it work including generators, etc., and the structure to which it is attached as the context may require.  A reference to a free-standing WCF shall include the tower or structure to which it is attached.

2 For the purposes of this document, the terms “R zone” and “residential zone” shall mean and include RS-20, RS-10, RS-8, RS-M, RU-5, RU-5(2), RU-M, RC, PDR, and the RR zone outside the rural tier.  The standards and regulations proposed herein for WCFs in R zones and residential zones shall also apply to any WCF located or to be located within 450 feet of any property zoned as an R zone.

 

3 Wherever the height of a WCF is referred to in this document, the height shall include the structure, including its base, and whatever antennae or array be mounted on the structure; however, the height of a WCF shall not include a lightning rod if the rod is a single rod or wire of no greater circumference than one inch.