06/11/1998DEVELOPMENT CODE ADJUSTMENT BOARD MEETING
CITY OF CLEARWATER
June 11, 1998
Present: William Schwob Chair
William Johnson Vice Chair
Mark Jonnatti Board Member
Ron Stuart Board Member
Shirley Moran Board Member
Leslie Dougall-Sides Assistant City Attorney
John Richter Senior Planner
Gwen Legters Board Reporter
To provide continuity for research, items are in agenda order although not necessarily discussed in that order.
The Chair called the meeting to order at 1:00 p.m. at City Hall, followed by the Pledge of Allegiance, Invocation, and review of meeting procedures.
B. Continued Variance Requests
B1. Scott & Ruth Hale/LCC International, Inc. for the following: (1) a setback variance of 10 ft to allow a monopole tower 50 ft from the east side property line where a minimum setback
of 60 ft is required; (2) a height variance of 70 ft to allow a monopole tower 120 ft high were a maximum height of 50 ft is permitted; and (3) a height variance of 2 ft to allow a fence
8 ft high were a maximum height of 6 ft is permitted at 1496 Belleair Rd (Proposed), Sec 23-29-15, M&B 33.05, zoned CG (General Commercial.) V 98 39
Senior Planner John Richter related case background at length, explaining in detail reasons the request to construct a 120-foot monopole telecommunications tower on the subject property
does not meet Section 45.24 standards for approval #1, #2, and #4. However, he said provisions of the 1996 Telecommunications Act drive approval. Applicants stress the need for a tower
at this location to avoid a gaping hole in their wireless service. They are amenable to collocation on another tower in the vicinity (Young tower), but Florida Department of Transportation
(FDOT) owns the land and has been unwilling to allow collocation. The City is working to gain FDOT approval. Applicants are willing to work with the City as long as the City continues
to work with FDOT toward collocation. Applicants have a mobile tower that could be located on FDOT property temporarily, and removed if FDOT’s permission to collocate is not received,
or if the requested variances are granted. Applicants must have their antennas in place by August 1 to enable adequate testing before their September 1 start-up date. If variances
are not granted, BellSouth Mobility’s attorney has indicated applicants are prepared to take the City to court as provided in the 1996 Telecommunications Act. Mr. Richter reviewed Telecommunications
Act requirements, and provisions of the City’s draft tower siting ordinance. Staff recommended granting the requested variances subject to 11 conditions.
Assistant City Attorney Leslie Dougall-Sides said the Planning and Zoning Board approved a June 2 conditional use request for the tower as a utility facility, subject to 11 conditions.
City Resolution 97 08 encourages joint use of existing towers. She counseled the board to apply current code, as the draft tower siting ordinance has not been enacted. She noted the
board has authority to review the proposal for compliance with City code, hear staff recommendations,
and determine whether Section 45.24 standards for approval are met. Concerns were expressed regarding the implication the applicant will sue the City if variances are not granted.
Questions were raised regarding the City’s obligation to provide service, and whether it is considered discrimination to deny an inappropriate variance request when setback variances
have been granted for other towers. Ms. Dougall-Sides responded the board is not bound by decisions in previous cases. Each geographic location is reviewed separately. The City is
not obligated to approve each company that comes forward with a business plan, but to provide enough geographic locations to enable wireless coverage.
In response to a question regarding location of antennas on Florida Power electrical towers, it was indicated 20 feet is the maximum distance a telecommunications signal box can be
located away from the base of a tower. Staff declined to speculate on outcome of negotiations with FDOT.
Jane Kelly, with LCC International representing BellSouth Mobility submitted for the record: 1) a manufacturer’s letter attesting to the proposed tower’s structural integrity and fall
zone; 2) a radio frequency propagation map showing the cell site and links to surrounding cell sites; 3) receipts for certified mail notifying surrounding residents and businesses of
the proposal; 4) an article concerning safety issues; and 5) FAA acknowledgment form ensuring no operational or obstructional hazards. She read from a prepared statement regarding history
of the application to date, type of tower structure proposed, BellSouth’s location, subscribers, public service activities, wireless technology, work with local landowners and jurisdictions,
coverage area, characteristics of signal propagation and location dynamics. While it is in BellSouth’s best interest to collocate, the need exists to provide seamless coverage in the
service area, in accordance with FCC requirements. She thanked staff for their cooperation and addressed provisions in the staff report at length. Variances are needed for a fence
to provide security and safety, prevent vandalism, theft, trespassing, accidents, and for liability reasons. She related efforts to pursue collocation and find alternate sites. She
reviewed benefits of wireless communications to provide emergency medical services, job opportunities, and emergency post-disaster service. She concurred with staff’s 11 recommended
conditions of approval.
Khaled Juma, engineer representing the applicant, reviewed a coverage area map and explained signal strength and coverage calculations. He said about four 50-foot towers would be required
to achieve the coverage provided by the requested 120-foot tower. Concerns were expressed the applicants have not proven they have adequately explored alternatives. Lengthy discussion
ensued regarding alternatives to the proposal, rationale for the applicant’s time limit, appropriateness of the proposed location in a generally single-story residential and commercial
area, and the possibility of purchasing land in a more compatible location.
Ron Daniels, representing LCC International, said BellSouth does not purchase land for its towers. Use of the subject property is on a 5-year lease with four 5-year renewal options.
No verbal or written support was expressed. An attorney representing adjacent land owners and residents submitted a petition with approximately 25 signatures of people who strenuously
object to the proposal. In response to a question, he said not all signatories reside within 500 feet; some work and attend church in the vicinity. He submitted staff’s report from
the May 28 DCAB meeting, and a copy of an amendment to the National Wireless Telecommunications Siting Policy. He spoke at length regarding the applicant’s failure to meet Section 45.24
standards for approval. A nearby business owner expressed concerns for the
safety of occupants of his office building if the tower should fall during a storm, and said reduced property value is likely. He resented having a big company pressuring people to
agree to their demands and suggested it would be more expedient to pursue the application to the Federal level. Six letters and a petition of opposition with approximately 44 signatures
were copied into the staff report.
Applicant representatives spoke in rebuttal to the opposition, reiterating earlier testimony. It was indicated the tower could fall in a force 4 tornado with 200 to 280 miles-per-hour
wind speeds, but such a storm would destroy every other structure in the area as well. No evidence of property devaluation was produced. The applicants have not threatened legal action
as their only remedy, but have demonstrated their willingness to cooperate and pursue collocation. Ms. Dougall-Sides affirmed that, during a meeting with the applicants, BellSouth’s
attorney had listed legal action as one item in a list of options available to the client, but the suggestion was not made in a threatening manner. In response to a request for clarification
of the applicants’ time constraints, it was indicated the September 1 start-up date is not mandated by FCC, but has been targeted in the marketing campaign as the date seamless coverage
will become available to the public.
In response to a board question, the attorney representing the opposition noted the coverage gap about which the applicant is concerned could be filled with a 50 foot tower, according
to engineering testimony. Discussion ensued regarding concerns over a proliferation of 50 foot towers.
Applicants were given the opportunity to introduce into the record supporting documents provided at previous hearings. Board members concurred with staff’s observation the proposal
does not meet three standards for approval, however did not agree that standard #3 is satisfied. It was indicated the property owners’ role in leasing the property to the applicant
is not for public service, but solely for economic gain. No board support was expressed for a temporary tower. The board encouraged pursuit of an agreement with FDOT, or collocation
on Florida Power poles. Ms. Dougall-Sides responded to questions regarding the board’s authority to decide whether the proposal meets code, and is appropriate for the surroundings.
She felt that denial would not be considered as unreasonable discrimination among providers, in view of the evidence.
Member Jonnatti moved to deny the variances as requested because the applicant has not substantially met all standards for approval as listed in Section 45.24 of the Land Development
Code. The motion was duly seconded and carried unanimously. Ms. Dougall-Sides was requested to prepare a statement of the board findings and final order for adoption at the next meeting.
C. New Variance Requests
C1. Linda D. Tenney for a height variance of 2 ft to allow a fence 6 ft high within the setback area from the Barton Lane right-of-way where a maximum height of 4 ft is permitted at
3045 Oak Hill Rd, Shady Oak Farms, Blk B, Lot 1, zoned RS 6 (Single Family Residential.) V 98 44
Mr. Richter related case background at length, stating staff recommends denial of the applicant’s request to retain an existing 6-foot-tall fence in its present location, as the request
does not meet Section 45.24 standards for approval #1, #2 or #4. As an alternative to denial,
he recommended granting a 2-foot fence height variance to allow a 6-foot-tall fence 17 feet back from the Barton Lane right-of-way, subject to four conditions.
Applicant Linda Tenney said she needs the existing fence to enclose her yard for recreation, privacy, security, and buffering from adjacent unimproved land used as a cow pasture. She
did not know the fence violated setback requirements when her ex-husband built it four years ago. She explained why she feels her request to keep the fence in its current location is
justified and satisfies the standards for approval. She disagreed with staff’s recommendation for landscaping outside the fence line. Mr. Richter explained exterior landscaping buffers
are generally recommended to soften appearance of fences for the benefit of neighboring properties. Clarification was provided regarding what is needed to bring the fence into compliance.
Discussion ensued regarding the adjacent cow pasture, its zoning, County jurisdiction, right-of-way location, and position in relation to the subject property. In response to questions,
it was indicated this item came forward in response to a notice of violation issued about a year ago, possibly prompted by a neighbor complaint. Fence requirements have been enforced
in the neighborhood and variances have been granted. The majority supported staff’s recommendations, because the fence in its present location would be a problem in the likely event
the pasture land is developed in the future. One member argued the merits of allowing the fence to remain, as the situation was not caused by the applicant. Alternatives were discussed.
No verbal or written support or opposition was expressed.
Member Jonnatti moved to grant the variances as requested because the applicant has substantially met all standards for approval as listed in Section 45.24 of the Land Development Code,
subject to the following conditions: 1) variance is based on the application, testimony, plans and documents submitted by the applicant, including applicable revisions incorporated
by action of the board. Deviation from any of the above documents regarding work to be done to the site of any physical structure located on the site, will result in this variance being
null and of no effect; 2) the requisite building permit shall be obtained within 30 days and the fence shall be relocated within 60 days; 3) within 30 days after the fence is relocated,
the property owner shall plant a landscape buffer outside the fence parallel to Barton Lane. The buffer shall consist of shrubs at least 18 inches in height at the time of planting,
and shall form a continuous, solid screen at maturity. Prior to installation, a landscape plan shall be submitted to the City’s Environmental Official and shall be subject to approval
by the Official. Failure to maintain the buffer in a healthy condition shall void the variances; and 4) the fence shall be moved 17 feet from the Barton Lane right-of-way. The motion
was duly seconded. Members Schwob, Johnson, Jonnatti, and Moran voted “Aye”; Member Stuart voted “Nay.” Motion carried.
C2. Ronald J. & Mireille Pollack/Frances C. Marsh for the following; (1) a height variance of 3.5 ft to allow a wall 6 ft high within the setback from the Druid Rd right-of-way where
a maximum height of 2.5 ft is permitted; and (2) a height variance of 4 ft to allow a non-opaque fence 7 ft high within the waterfront setback area where a maximum height of 3 ft is
permitted at 1100 & 1104 Druid Rd S, Harbor Oaks, Lots M&L with submerged land, zoned RS 2 (Single Family Residential.) V 98 45
Mr. Richter related background, stating staff recommends approval with four conditions.
Applicant Ronald Pollack said the variances are requested to improve security, define, and separate his property from the adjacent medical center, and from Druid Road. Walls similar
to the proposal appear elsewhere in the neighborhood. Noting variances were granted in December, 1997, for a two-story house on the property, Mr. Pollack said he has since purchased
the adjacent lot to the north and designed a new home spanning the two lots. Parking and landscaping areas are to be reconfigured.
No verbal or written support or opposition was expressed.
Member Moran moved to grant the variances as requested because the applicant has substantially met all standards for approval as listed in Section 45.24 of the Land Development Code,
subject to the following conditions: 1) Variance is based on the application, testimony, plans and documents submitted by the applicant, including applicable revisions incorporated
by action of the board. Deviation from any of the above documents regarding work to be done to the site of any physical structure located on the site, will result in this variance being
null and of no effect; 2) the requisite building permit shall be obtained within one year; 3) prior to the approval of a final inspection for the wall, the property owner shall plant
a landscape buffer outside the wall parallel to Druid Road to soften its appearance from the public road. The buffer shall consist of shrubs at least 18 inches in height at the time
of planting. Before the landscaping is installed, a landscape plan shall be submitted to the City’s Environmental Official and shall be subject to approval by the Official. Failure
to maintain the buffer in a healthy condition shall void the variances; and 4) the wall shall be constructed in accordance with City Traffic Engineering requirements to ensure pedestrian
safety on the public sidewalk along Druid Road South. The motion was duly seconded and carried unanimously.
C3. James R. & Joyce B. Talbott for a setback variance of 3 ft to allow a wood deck 7 ft from the north side property line where a minimum setback of 10 ft is required at 18675 US 19 N #169,
Bay Aristocrat Village Mobile Home Park (Unrec,) zoned RMH (Mobile Home Park.) V 98 46
Mr. Richter said staff recommends approval of the request for a 10 by 16-foot sun deck behind an existing mobile home, subject to two standard conditions. Applicant James R. Talbott
concurred with staff’s recommendations, stating the mobile home park manager supports the request. One letter of support was submitted.
Member Johnson moved to grant the variance as requested because the applicant has substantially met all standards for approval as listed in Section 45.24 of the Land Development Code,
subject to the following conditions: 1) variance is based on the application, testimony, plans and documents submitted by the applicant, including applicable revisions incorporated
by action of the board. Deviation from any of the above documents regarding work to be done to the site of any physical structure located on the site, will result in this variance being
null and of no effect; and 2) the requisite building permit shall be obtained within one year from the date of this public hearing. The motion was duly seconded and carried unanimously.
C4. M-K Real Estate Investment Co./John M. Searcy for the following: (1) a perimeter landscape variance of 4 ft, along the southwesterly lot line of Lot 3, to allow 6 ft where a minimum
of 10 ft is required; (2) a perimeter landscape variance of 8.67 ft, along the southeasterly lot line of Lot 3, to allow 1.33 ft where a minimum of 10 ft is required; and (3) a perimeter
landscape variance of 3 ft, along the southwesterly lot line of Lot 15, to allow
7 ft where a minimum of 10 ft is required at 2715 SR 580, Acker’s Sub, Blk 1, Lots 3 & 4 less rd right-of-way on NW & Lot 15, zoned OL (Limited Office.) V 98 47
Mr. Richter said staff recommends approval of the request for variances to develop the subject property with an office building, subject to two standard conditions. The City is processing
a related annexation request.
Architect Ed Walker represented the applicant, who purchased the property recently. Annexation to obtain City sewer service requires bringing the property into code compliance. Mr. Walker
related site constraints and difficulty of meeting all landscaping requirements. He felt the proposed landscaping improvements were sufficient to buffer the parking lot. He suggested
the retention pond on the adjacent property diminishes the need for a perimeter landscaping buffer as wide as required by code. In response to a question, Mr. Walker said the property
will have an entrance on Daniel Street.
No verbal or written support or opposition was expressed.
Member Jonnatti moved to grant the variances as requested because the applicant has substantially met all standards for approval as listed in Section 45.24 of the Land Development Code,
subject to the following conditions: 1) Variance is based on the application, testimony, plans and documents submitted by the applicant, including applicable revisions incorporated
by action of the board. Deviation from any of the above documents regarding work to be done to the site of any physical structure located on the site, will result in this variance being
null and of no effect; 2) the requisite building permit shall be obtained within one year from the date of this public hearing. The motion was duly seconded and carried unanimously.
Minutes Approval -- May 14 and May 28, 1998
Member Moran moved to approve the May 14 minutes as corrected by staff, and the May 28 minutes as submitted in writing to each member by the Board Reporter. The motion was duly seconded
and carried unanimously.
The meeting recessed from 4:15 to 4:20 p.m.
Board & Staff Comments
The board approved staff’s new report format.
Ms. Dougall-Sides reported an appeal hearing was held regarding Maria Curry’s group home separation distance variance. A certified site plan for Don Pablo’s restaurant was approved
without the additional paved parking spaces protested by Bay Aristocrat neighbors, and a settlement agreement has been entered. It is hoped the agreement will be submitted to the Administrative
Law Judge who heard the appeal.
Board members hoped the new telecommunication ordinance would not allow towers similar to today’s proposal, without variances. Ms. Dougall-Sides said the draft ordinance requires
a conditional use-type hearing and would not permit towers in or adjacent to residential areas.
Due to the frequency of fences and sheds being built without permits or variances, staff was requested to contact and work with the Homeowner’s Coalition to provide educational opportunities
for homeowners. In addition, it was suggested to encourage homeowners associations to publish permitting information in their newsletters.
Adjournment
The meeting adjourned at 4:35 p.m.