WEDNESDAY, AUGUST 16, 2017
(1) (a) Consider approval of Commission Orders; and
(b) Consider approving 2nd amendment to the lease agreement between the City of Lawrence, Douglas County and the Bioscience Technology Business Center (BTBC) to extend the lease repayment schedule for the BTBC expansion facility located at 4950 Bob Billings Parkway for one year through 2018, as requested by the BTBC. (Lavern Epp and Adam Courtney); and
(c) Consider approval of application for an authorized emergency vehicle permit (Ken McGovern)
(2) Big Springs Quarry update for Certification of Phase 3 Reclamation. The reclamation of Phase 3 has been reviewed by staff and found to be in compliance with the approved reclamation plan. The reclamation is being placed on the County Commission agenda with staff’s recommendation that the Commission certify that reclamation of Phase 3 is complete. (Mary Miller is the Planner)
(3) CUP-17-00215: Consider a Conditional Use Permit for a new 190 ft self-supporting wireless telecommunications facility (tower), located at 2138 N 1000 Rd. Submitted by MW Towers LLC for F. Dwane Richardson & Valerie Richardson, property owners of record. Deferred by County Commission on 7/19/17. Sandra Day is the Planner.
(4) (a) Consider approval of Accounts Payable (if necessary)
-Board of Zoning Appeals (1) position 10/16
-Building Code of Appeals Board (2) positions 12/16
-Community Corrections Advisory Board
-Heritage Conservation Council (3) positions
(c) Public Comment
August 16, 2017
Gaughan called the regular meeting to order at 6:03 p.m. on Wednesday,August 16, 2017 with all members present.
CONSENT AGENDA 08-16-17
Gaughan moved approval of the following Consent Agenda:
► Commission Order Nos. 17-033 and 17-034 (on file in the office the County Clerk);
► 2nd Amendment to the lease agreement between the City of Lawrence, Douglas County and the Bioscience Technology Center (BTBC) to extend the lease repayment schedule for the BTBC expansion facility located at 4950 Bob Billings Parkway for one year through 2018; and
► Emergency Vehicle Permit for David A. Wulfkuhle, Lecompton, Kansas.
Motion was seconded by Thellman and carried 3-0.
Mary Miller, Lawrence-Douglas County Metropolitan Planning Staff, presented the Commission with an update for the Big Springs Quarry certification of Phase 3 reclamation.
The quarry operator notified Planning Staff that quarrying has begun in Phase 6 and requested staff to visit the site to determine if reclamation on Phase 3 was complete. Staff visited the site on Thursday, June 8, along with Scott Carlson, the Department of Agriculture Assistant Director/Land Reclamation Program Manager. Scott determined that the reclamation was compliant with the Department of Agriculture standards but noted that they would like to see the grass better established. Staff found Phase 3 to be in compliance with the approved reclamation plan and noted the operator does not have to quarry phases in numerical order.
Gaughan opened the item for public comment. No comment was received.
Gaughan moved to verify the reclamation of Phase 3 was complete. Motion was seconded by Thellman and carried 3-0.
The Board considered CUP-17-00215, a Conditional Use Permit for a new 190 foot self-supporting wireless telecommunications facility (tower), located at 2138 N 1000 Road. The application was submitted by MW Towers LLC for F. Dwane Richardson and Valerie Richardson, property owners of record. This item was deferred by the Commission on July 19, 2017. Sandra Day, Lawrence-Douglas County Metropolitan Planning Staff, presented the item.
Gaughan noted the Board left the public hearing open at the end of the 07/19/17 meeting. All three Commissioners disclosed ex parte communications as meeting with the County Counselor separately.
Gaughan opened the item for public comment.
Patrick Kelly, 14600 Village Drive, Olathe, Kansas, stated concerns that the tower is unlighted. According to his research, the FAA Extension Safety and Security Act of 2016 requires 50-200 foot towers in rural undeveloped area to be lighted.
Day said that is not something staff has followed up on. She is only aware of what is required currently. If the FAA were to develop regulations for marking and lightings and became applicable to this project, then the Conditions of Approval would have to go back through the public process.
Kelly asked if the applicant made every effort to co-locate on an existing tower with no success. Gaughan responded that legislature has superseded the Douglas County Zoning Regulations and that can no longer be required of an applicant.
John Bullock, County Counselor, said the state statute K.S.A. 66-2019 provides the County may not “evaluate an application based on the availability of other potential locations for the placement of wireless support structure or wireless facilities including but not limited to the option to co-locate instead of constructing a new wireless support structure or for substantial modifications of a support structure.” This statute would supersede anything in the County Code.
Thellman added the statute also states if an authority requires an applicant filing for a new wireless support structure to state that the applicant conducted an analysis of available co-locations opportunities, that information is not to be evaluated.
Kelly also stated there are two noncompliance activities on the subject property in violation of Douglas Count Zoning Regulations, a home business and an airstrip. A Conditional Use Permit to address these issues is scheduled with the Planning Commission on August 23. He questioned how the Board could make a determination on the cell tower when the CUP has
not yet been addressed. Kelly feels the Board has a right to deny the cell tower application based on noncompliance. He has concerns regarding aesthetics, safety hazards and decreased property values.
Barbara Braa, 1032 E 2100 Road, stated materials have been provided showing property values diminished with cell towers in their surrounding area. She asked if the County will require a performance bond for the removal of the tower within 180 days of abandonment. She also asked how long the lease is for.
Day responded the tower owner is responsible for the tower removal. There may be something in the lease between the property owner and the applicant. However, the length of the lease is not something staff evaluated. She has yet to see a tower in Douglas County removed to abandonment. They tend to continue with the tenants on the towers. Day stated Douglas County does not require bonding.
Bullock again referenced K.S.A. 66-2019 which addresses surety or performance bonds. From a legal standpoint we are permitted to require a bond or letter of credit if we impose similar requirements on other permits, for other types of commercial developments for land uses. And, the bond cannot exceed a reasonable estimate of the direct cost of the removal of the facility. Furthermore, the requirements must be competitively neutral, non-discriminatory, reasonable in amount and commensurate with the historical record for local facilities and structures that are abandoned. Bullock added it is his understanding we have not required these types of bonds for other towers.
Thellman asked for clarification on requesting information on the length of the lease. Bullock stated he is not aware of any provision or regulation that would allow us to speak to the length of the lease.
Justin Kelly, 18962 W 188th Street, Olathe, Kansas, said he feels there is lack of clarity on who and what basis the application can be denied. Kelly read from a letter from his attorney that addressed an article analyzing cell tower applications. The article names the following reasons to support denial of the application: consistency with the Comprehensive Plan, not compliant with applicable zoning regulations, height and design, and location and impact on surrounding neighbors.
Note: Thellman asked Kelly to provide referenced email to staff to make part of the Public Record. Kelly stated he would be happy to provide a copy. The information was never received by staff.
Greg Neis, 934 E 2100 Road, stated he lives in the area and is not opposed to the tower. He said there is a need for improved cell service in this area. He has very limited broadband options. Most of the time he has no cell service in his house. He asked the Board to consider approval of the application.
Vincent O'Flaherty, representing MW Towers, referenced correspondence received from Hometown Graphics in support of the application. O’Flaherty made a PowerPoint presentation outlining the reason the application cannot be denied. The legal boundaries and authority include the following: Federal Telecommunications Act of 1996, Kansas Wireless Infrastructure Act, the County Code and the Golden Factors.
According to O’Flaherty, the Federal Telecommunications Act encourages placement and construction of towers and as a result, the County cannot use zoning authority that prohibits or have the effect of prohibiting the provision of personal wireless services or regulate on basis of the environmental effects of RF emissions to the extent such facilities comply with FCC regulations concerning emissions. The Kansas Wireless Infrastructure Act K.S.A. 66-2019 further establishes Kansas public policy to encourage permitting and construction of towers as follows: they are critical to ensure business and schools remain competitive; the towers have a significant economic benefit; and towers are a matter of statewide concern and interest. According to the K.S.A. Statute 66-2019, there are 18 factors that cannot be considered to deny a tower application. Of the 18 factors, O’Flaherty addressed the five matters raised during the July 19 County Commission meeting and addressed again today that cannot be considered to deny the application.
• Landowner noncompliant use
• Property values will decrease
• Impact on birds
• Safety concerns
The County tower regulations only require that the applicant obtain written authorization from the property owner of the proposed tower site, Section 12-319-4.31(b)(1). Nothing says the property owner’s use of his/her property is a factor to consider. Also the Board “cannot discriminate or create a preference on the basis of the ownership of any property” K.S.A. 66-2019(f)(9). O’Flaherty said considering whether the owner has nonconforming use unrelated to the tower application is “discriminating” or “creating a preference” against the applicant who is not the property owner. The comment that property values will decrease is pure speculation that is subject to debate. There was no specific evidence of decreased value from any landowner nor any appraisals of value before or after a tower. O’Flaherty commented that the gain to the public vs. the hardship to an individual is outweighed by the huge public benefit as expressed by Kansas legislature exceeds unsupported minor harm to individual property values. As far as aesthetics, the County cannot impose unreasonable requirements regarding appearance, according to K.S.A. 66-2019(f)(10). The impact on birds again is weighed by the public vs. the hardship to an individual. The tower is a huge public benefit as expressed by Kansas legislature exceeds unsupported minor harm to individual who want birds to fly across this land. And according to statute, the County cannot impose requirements as to radio frequency that exceeds FCC rules, and they cannot evaluate the application based on availability of other locations, K.S.A. 66-2019(f)(3). O’Flaherty stated the comment raised should towers be moved out of the flight path of ultralights is not a factor that can be considered, nor is there evidence that. Regarding safety concerns, the allegation the applicant has an unlicensed airfield and safety concerns about crop-dusting are all speculations to whether that is even a safety concern. The applicant will operate under the law and will follow all FAA requirements. The concern about creating an access road does not apply as the tower is not considered a utility.
O’Flaherty added the statute supersedes the County Code. Regarding the length of the lease according to 66-2019 (f1), the County cannot inquire into the applicant’s decisions. Staff did not require it and he respectfully declines to provide it. O’Flaherty did say it is longer than 10 years. The Kansas Statutes states the CUP cannot be granted for less than 10 years. There was an issue raised regarding the requirement of lightening on the tower. As of today, the federal government does not require lighting affecting this size tower. Though there have been discussions nationally, there are no regulations. O’Flaherty said in the future if the FAA requires this tower to be lit, the applicant will follow the FAA requirements. At present time, according to the status of the law, this tower is less than 200 feet and is not required to be lit. As to the performance bond, he agrees with the County Counselor, cannot be required according to statue. To address the letter read by Mr. Kelly from his attorney, the letter does not reference Kansas Statute 66-2019.
Gaughan again asked Justin Kelly to submit a copy of the letter from his attorney for public record. Kelly agreed. It was confirmed a letter from Hometown Graphic was received by staff and was part of the public record.
Gaughan moved to close public comment. Motion was seconded by Derusseau and carried 3-0.
Thellman said most of her questions were answered by staff, Mr. O’Flaherty and Council. She requires no additional information.
Derusseau asked Day if there is an airstrip on the property. The green strip on the aerial map resembles an airstrip. Day said she is not aware of an active airfield or landing strip. If they do have one, Staff will need to do a follow-up. There is no CUP on this property for that activity. Whether or not there is an airstrip needs to be verified.
Sean Reid, Director of Zoning and Codes, stated a CUP is required under County Code 12-319-4.01 for airports and landing fields. The County does not regulate ultra-light landing strips. He is not aware if this is a registered airfield, but there is no CUP.
Gaughan stated we need to determine whether this is a landing strip for safety concerns. He asked Bullock if that is an appropriate question to clarify. Bullock responded the concern of safety or lack of safety is a proper basis for inquiry. In order to base a decision on a concern about operation of any sort of aircraft in the vicinity, the Board would need substantial evidence to support the validity of the concern. To say “what about this landing strip” would not be substantial evidence. You would need evidence in the record to base your decision on in regards to safety related to nearby airstrips. There are limitations in the statute that relate to airports but we are not talking about airports. Bullock said the questions of whether this particular use needs a CUP or not, or is it being properly regulated is outside the scope the decision you are making in regards to the wireless tower. What activities are taking place in the vicinity of the wireless tower or how they impact human health, safety and the general welfare or what is in the public’s purview has to have substantial evidence. It’s more than an opinion or a question but doesn’t require scientific certainty. It’s appropriate for the subject of inquiry. The standard to apply would be to look for some substantial evidence that creates a legitimate, reasonable, defensible concern regarding human health and safety in the vicinity of the new tower.
Derusseau questioned whether the Board has enough information to determine whether there is a safety concern. Bullock responded the decision on whether the Board has enough information is a determination the Board has to make. Bullock stated he can help with what the standards are but he is not the decision maker and cannot determine whether there is or not enough information to make a decision.
Gaughan stated the question is whether it is a landing strip and whether there is a safety concern.
Thellman stated she remembers reading in the Planning Commission minutes that the landowner identified the strip as a private landing strip for ultralight use and the person that operates the ultralight on the property was not concerned about the tower. Gaughan responded he remembers reading that also.
Derusseau stated if it is only the property owner using the strip she has no concern. Her concern would be if others were using the strip.
Gaughan verified in his copy of the Planning Commission minutes the landowner has an ultralight and had no concerns about the tower.
Gaughan stated there has been many questions about what the Board can and cannot consider with this application from the many people involved: the property owners, the neighbors, the applicant and staff managing multiple projects with the same property. The Commission did have discussions over the past several weeks with and about applicants and how things were handled by them. Our practice is to try to make things possible for people when they are willing to get into compliance. Gaughan added staff does their work with the reflection of the Commission’s perspective.
Gaughan moved to approve CUP-17-00215, a Conditional Use Permit for a new 190 foot self-supporting wireless telecommunications facility (tower), located at 2138 N 1000 Road, submitted by MW Towers subject to the following conditions:
1. Provision of a revised site plan drawing that shows the location of the tower enclosure setback at least 60’ north of the right-of-way line and the tower to be setback a minimum of 150’ from the future right-of-way line per section 12-310 of the County Zoning Regulations, and
2. Provision of a note on the face of the plan that states any increase in height above 200’ or that would require installation of lights for FAA regulations will require a full public hearing process by the Planning Commission and County Commission with notice prior to modifications being permitted.
Thellman added to her friends and constitutes in the audience she has experienced for herself there is limited cell coverage in this area. Unfortunately there is no perfect location to place a cell tower so remote no one would see it, or be worried about the value of their property. Given the restraints the Commission is under, she is not persuaded to vote against the cell tower. The Commission has State Statutes to conform with, a positive vote from the Eudora Planning Commission, and a positive vote from the Planning Commission of Douglas County/City of Lawrence. Thellman said in the planning notes, one of the Planning Commissioners, who is a lawyer, made the comment we shouldn’t be compelled to follow the statute. That statement may have given neighbors false hope. In reality, we are obligated to take the statutes seriously and our own zoning regulations have been met on those items. In the future maybe we need to take a look at our regulations regarding bonds for consistent practices. However, Thellman said the state statute places a high bar on cell towers and she reluctantly supports the CUP.
Derusseau said she appreciates all those who came out to two nights to give their thoughts. Everyone wants better cell service but not in their backyard. She said she spent an afternoon out in the area and checked the surrounding neighbor driveways and took photos to get an idea of what the area might look like. She looks at this like a utility and feels it is a necessity.
Motion was seconded by Derusseau and carried 3-0.
ACCOUNT PAYABLE 08-16-17
Gaughan moved to approve accounts payable in the amounts of $858,063.66 to be paid on 08/17/17. Motion was seconded by Derusseau and carried 3-0.
Gaughan moved to appoint Commissioner Derusseau as the voting member of the County Commission at the Kansas Association of Counties conference, with Jamie Shew, County Clerk, as her alternate. Motion was seconded by Thellman and carried 3-0.
Gaughan moved to adjourn the meeting. Motion was seconded by Thellman and carried 3-0.
Mike Gaughan, Chair Nancy Thellman, Vice-Chair
Jamie Shew, County Clerk Michelle Derusseau, Member