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HomeMy WebLinkAbout12 17 2014 CM137 CITY OF CHUBBUCK COUNCIL MEETING AGENDA December 17, 2014 6:00 pm The minutes of a regular Council Meeting held at the City of Chubbuck Council Chambers, December 17, 2014. Present: Mayor Kevin England, Councilmembers: Kermit Morrison, Ryan Lewis, Josh Ellis, and Brent Marshall. Attorney Thomas Holmes, Public Works Director Steven Smart, City Clerk Rich Morgan. The meeting was called to order at 6:00pm by Mayor Kevin England. The pledge of allegiance to the flag was led by Councilmember Ellis. Councilmember Morrison moved to approve the regular meeting minutes of December 3, 2014 and the regular study session minutes of December 10, 2014. Councilmember Ellis seconded. Roll call vote: Ellis -yes, Lewis -yes, Morrison -yes, Marshall -yes. General Business: The Mayor explained that Mr. Rick Newsom, 421 Chickadee, who has requested a hearing to discuss the $50 delinquency fee assessed to his utility account could not attend the meeting tonight and has asked the council to consider his request at a later date. The Mayor explained that it had come to the attention of the City that Councilmembers had participated in ex parte communication surrounding the conditional use permit request by T - Mobile. The Mayor asked each Councilmember to disclose. Councilmember Morrison has not participated in ex parte communications. Councilmember Ellis did have ex parte communication with Ms. Berls and stated that he would not use the information in that communication in making his decision. Councilmember Lewis said he had received emails, would provide those emails to the city and that he would not use the information in those emails in making his decision. Councilmember Marshall also disclosed that he had participated in ex parte communication and said he had received 5 emails. He stated that he would not use the information received in making his decision. On November 12, 2014 the City of Chubbuck's Land Use Board approved a conditional use permit for T -Mobile to construct a 80' wireless communication facility at Chubbuck Elementary School. The City of Chubbuck received 12 appeals concerning the decision. Council Meeting Minutes - Continued 139 December 17, 2014 Rocky Schutjer representing T -Mobile at 121 West Electron Road Suite 330, Draper Utah explained the design and placement of the pole. Mr. Schutjer showed the council a wireless coverage map. Currently the City of Chubbuck is receiving service from a pole located at the Bannock County Fair Grounds. The area is underserved and T -Mobile has needed to locate a pole in the City for some time. T -Mobile tries to site poles between one and two miles apart. The first thing T -Mobile does try to do is look for existing structures and co -locate on these structures. The wireless companies have nationwide lease agreements with each other to help facilitate this co -location. T -Mobile identified 4 sites that are existing in the Chubbuck area. All of these sites are close to the site T -Mobile has at the fair grounds and did not meet their need. The next step for T -Mobile was to identify sites within the needed coverage area. There were several sites identified in this process. Three were mentioned, Chubbuck Elementary, Stuart Park and the Hawthorne Animal Hospital. The actual site plan would be a rectangle piece of land approximately 20 by 30 feet. There will be a small building for equipment and an 80 foot mono pole. The antenna on the pole will be flush mounted. The entire complex will be fenced. Mr. Schutjer presented maps and photos to explain to the council the proposal. Councilmember Ellis asked about the set back on the east side of the proposed location. The City's ordinance requires a setback, however, the ordinance also allows waiving the set back at the councils discretion. Councilmember Ellis asked about the current wireless facility located on Pocatello High School's Gym and asked if it was possible to locate the pole on the Chubbuck Elementary building. Mr. Schutjer explained how the height of the building, a single story structure, would make the pole needed tall enough that the engineering would be an unacceptable solution. Mr. Schutjer explained that today, cellphone networks are usually quite mature. However, with the traditional residential zoning laws, penetration in residential neighborhoods has been difficult. He also explained that telephone land lines are becoming obsolete. Statistics on the declining use of land lines and the move of the populace to wireless devices is driving wireless companies to find solutions to meet this demand. One way they have been trying to meet this demand in residential areas and still meet the requirements of existing zoning laws is to partner with school districts. Locating these poles on school grounds is a very common business practice. Mr. Schutjer used the current projects T -Mobile is working on with the Twin Falls area school district and school districts in Ada County as examples. Council Meeting Minutes - Continued 141 December 17, 2014 Councilmember Lewis asked Mr. Schutjer how T -Mobile has met the order of priorities in the City's ordinance section 18.13.080. Councilmember Lewis mentioned the 10 criteria listed. Councilmember Lewis would like to know if T -Mobile looked at locations as described in all the order of priorities. Mr. Schutjer explained that T -Mobile did look at the order of priorities. The first priority was co -location on existing towers and it is T -Mobile's position that there are no suitable existing structures to provide the needed coverage. The second order of priority is placing towers on public property. T -Mobile's position was that they found public property, Chubbuck Elementary School, and the owner, School District 25, was willing to entertain the possibility of constructing the proposed mono pole on the property. Councilmember Lewis would like T -Mobile to show that they have done their due diligence to find locations for the pole in relation to all the order of priorities. Councilmember Lewis asked if T -Mobile contacted willing landlords to meet the due diligence required by the order of priorities. Mr. Schutjer assured Councilmember Lewis that T -Mobile absolutely scoured the area in looking for a suitable site for the proposed compound. There are no buildings that would meet the required height for including a pole on the existing structure. In contacting the School District, T -Mobile, represents that they found a willing landlord. In Mr. Schutjer's opinion, this parcel on the school ground is a perfect fit for the company, the school district and the proposal meets the City's ordinance. Councilmember Ellis stated that the School District does have some property rights that should be considered. Councilmember Ellis then asked if a third party review was done as suggested in code section 18.13.160. Mr. Schutjer explained that the third party review was not done. A third party review would be done at the request of the City and the City did not request the third party review. Councilmember Ellis expressed concern over the request to waive the set back requirement and yet a third party review was not complete to help substantiate the need for the waiver of the set back. Councilmember Marshall asked T -Mobile what the cost of co -locating on a tower would be. Mr. Schutjer explained that the wireless communication companies have master leases with each other that govern the entire nation. Mr. Schutjer does not know what the cost of an individual co -location cost would be. However, Mr. Schutjer would guess that the cost of co -locating would be comparable to the price quoted for the lease to the School District. Mr. Schutjer does know that the price of co -location would be less than the cost of a new site because of the capital investment made in the site. Council Meeting Minutes - Continued 143 December 17, 2014 Councilmember Marshall then asked Mr. Schutjer how many customers T -Mobile has. Mr. Schutjer did not know how many customers T -Mobile has in the area. Councilmember Marshall would like to know exactly how many customers they have. Councilmember Marshall then asked how many complaints T -Mobil has received about reception in the area. The Pocatello area manager for T -Mobile answered this question and said they have received thousands of complaints. Councilmember Marshall would like details on the complaints, was it 10 customers calling 100 times or 1,000 different customers. Councilmember Marshall stated that none of the complaining customers are here in this meeting requesting the tower be conditionally permitted. Councilmember Marshall also mentioned that playground equipment would need to be moved and asked who would bear this cost. Mr. Schutjer explained the relocation of the playground equipment. The move would be minor and T -Mobile would be making this change for the School District. Councilmember Ellis said the decision tonight should be whether or not T -Mobile has met the requirements of the ordinance. If T -Mobile has met the requirements of the ordinance the council should allow the tower. Councilmember Ellis stated that the ultimate decision on the tower will be with the School District, the City Council will decide if it meets the City's requirements, the School Board will decide on whether or not they will have a contractual business relationship with T -Mobile. Councilmember Ellis would like to see a third party review on this site and believes a third party review would be helpful in deciding whether or not to grant the conditional use permit with the waiver of the required set back. Councilmember Lewis ask if there was contract in place between the School District and T - Mobile. Mr. Schutjer explained that there has been a draft lease presented to the School Board. The School Board has expressed an interest in entering into an agreement with T -Mobile, however, as of today there has been no lease between the two parties signed. Tom Holmes, the City's attorney asked Mr. Schutjer how long a third party review would take. Mr. Schutjer's best estimate at this time of year would be late January. There is a requirement upon the City to have a decision on the conditional use permit within 150 days of the application date which was August 11, 2014. Mr. Schutjer was asked if T -Mobil would be willing to waive this requirement and Mr. Schutjer did not know if T -Mobile would agree to waiving the requirement. Mr. Schutjer requested the Council uphold the decision of the Land Use Board. Council Meeting Minutes - Continued 145 December 17, 2014 The Mayor asked to hear from those who had filed an appeal with the City Clerk. Lonna Gerstner, 5011 Hawthorne, stated that she was not against the cell phone tower but would like the required set back on her property followed. She stated that she had been approached by T -Mobile in putting the tower on her property and she declined. She also asked for clarification on any restrictions an existing cell tower at this site would impose on her land if there was future development. The City does not believe the cell tower at this site would impede the development of Ms. Gerstner's land in anyway. Brett & Jeni Crystal, 934 Margaret. The Crystals were not at the hearing. Lorraine Mitton, 4919 Joy, stated that she would like the council to review the letter submitted to the City Clerk and review her testimony at the Land Use hearing. She has no additional testimony to add. Dan & Bernice Cawley, 5013 Joy. The Cawleys were not at the hearing. Niki Taysom, General Delivery (4604 Burley), Ms. Taysom stated that the 300 foot requirement in the City's code was ridiculous, the radiation from this tower will affect her. Ms. Taysom stated that the FCC's regulations that the council cannot deny the tower based on radiation does not make the decision to allow the tower, right. Ms. Taysom stated, that just because everyone is doing this does not make this right. Ms. Taysom would like the counsel to think of the children and the animals. She believes this is all about money and to say it isn't about the money is dishonest. Councilmember Lewis asked Ms. Taysom if it was her position that the Council disregard the federal statute governing cell tower communications. Ms. Taysom answered yes. Councilmember Lewis asked Ms. Taysom if she was claiming that her real property would be impacted by construction of this tower. Ms. Taysom stated no. Ms Taysom stated she is making a general grievance. Kelly Hensley, 527 Boyd. Mr. Hensley was not at the hearing. Council Meeting Minutes - Continued 147 December 17, 2014 Allen & Kay Martin, 546 Boyd. Mr. Martin explained that the proposed tower is directly over his back fence and believes that its location will impact his property. He would like to see T - Mobile go west into open ground where there will be minimal impact. Mr. Martin believes this tower will make the surrounding area less desirable. Mr. Martin said he would not have bought the property with an existing cell tower so close to the property. Ms. Martin was asked if she would like her own time to testify and she stated that she agrees with what Mr. Martin has said. Brian Berls, 964 Margaret. Mr. Berls thanked the council for their time. He would like to point out that he believes the Land Use Board has admitted that the tower is a problem for the children on the playground, because they required T -Mobile to move the play ground equipment that is near the tower. He is not against cell phone towers, he is against the placement of this cell phone tower. He has safety concerns about the technicians being pedophiles. Councilmember Lewis asked if there any claim that his real property is being affected. Mr. Berls answered no. Rebecca Berls, 964 Margaret. Ms. Berls has lived in Chubbuck for three years. Two of her three children attend Chubbuck Elementary School. She considers her children her property and her connection to this conditional use permit appeal. Today she saw someone surveying the land in question and would like to know why. She requests the council read the ordinance governing cell towers and conditional use permits, liberally, in favor of the citizen. The kids effected do not have a say in this. She is their voice. She can see cell towers in industrial and commercial areas and believed that is where they belong. She also stated that it is her belief that the school district is trying to keep the word from getting out on the placement of the cell tower. She met with Mary Vagner requesting the ability to send a factual flyer home with Chubbuck students. Ms. Vagner denied her request. Ms. Berls stated that T -Mobile asked for a site in Fort Hall and the request was denied. She believes that if this tower is denied T -Mobile will ask the School District for a site at Tyhee Elementary. Ms. Berls presented statistics on cell phone tower failures, tip overs, deaths related to cell phone tower failures, and OSHA violations. Ms Berls believes that this conditional use permit could be denied on the grounds of safety. She is also concerned about T -Mobile's ability to increase the height on the tower from 80 feet to 100 feet. The towers are grounded, however, she has information that they attract lighting to the area they are in. Ms Berls apologized for the ex parte communication and explained the email she sent was a court case involving T -Mobile that had ended up at the US Supreme Court. The questions Ms. Berls asked at the beginning of her testimony about a survey taking place on the school grounds at the property site is a question for the School District. The City does not have the answer to that question. Council Meeting Minutes - Continued 149 December 17, 2014 Lynn & Sachiko Swanson, 4943 Shepherd. The Swansons were not at the hearing. Randon & Elizabeth Renzello, 510 Homestead. Mr. Renzello was not at the hearing. Ms. Renzello stated that most of her concerns are stated in the letter of appeal she has submitted and have been mentioned tonight. She thinks the answer the council should give to this conditional use permit is by gauging the support or lack thereof, for the permit. She did also state that the view out her front window will be impacted by the placement of the tower. Darrel & Linda Osterman, 5033 Joy. Mr. Osterman did not want to add to the oral testimony given. He asked the council to read his written appeal. Dan Colvin with T -Mobile in Pocatello stated that it would be very difficult to give Councilmember Marshall the number of customers in the Pocatello area simply because of the portability of cell phone numbers. He also stated that he would be the technician running interference the tower. Bart Reed with School District 25. Mr. Reed can appreciate the conversation this evening. He would like to clarify several items. School District 25 did not approach T -Mobile in regard to the tower or its placement, T -Mobile approached the School District. After review of the proposal the School Board did think it was a good fit for all parties involved. There has been suggestions that $18,000 is a vested interest for the District. In a 100 million dollar budget, $18,000 is not a vested interest. Mr. Reed stated that this is not a School District issue, this is a City Council issue. If the conditional use permit is granted then the School Board would decide if they wanted to enter a lease. Mr. Reed stated that the safety of these towers has been engineered to its maximum. The placement of this particular tower would affect less than 5% of the playground. the district has received information from individuals that is not different than what you have heard today. Councilmember Marshall asked if the tower was located in the corner of the property and how big a base would the tower include. Councilmember Marshall asked about the railroad tie fence to the east of the playground. Mr. Schutjer showed Councilmember Marshall a map of the site placement and stated that the fenced area would be 30 by 20 feet. Mr. Schutjer also stated that all fencing of T -Mobiles will be chain link. Mr. Reed stated that all School District fencing is chain link. The railroad ties mentioned are on the property to the east. Council Meeting Minutes - Continued 151 December 17, 2014 Tom Holmes stated that the Land Use Board waived the set back on Gerstner's property and asked Mr. Schutjer and Mr. Reed if the School District would still be interested in the contract if the setbacks had to be met. Mr. Schutjer and Mr. Reed do not know if the lease would go forward under that scenario. Councilmember Ellis would like the council to make a decision that sends the message that the City of Chubbuck is open for business, we want businesses here, we want them to locate in our City. We need the tower but it also needs to conform to our ordinance. We have those who would like the tower but not in their back yard. If the conditional use permit conforms to our ordinance it is our responsibility to approve the permit. Then the transaction is between T - Mobile and the School District. Councilmember Lewis discussed how the council could handle each of the individual appeals. It was reiterated several times that the council would like the third party review. Councilmember Morrison would like more information on the other two sites mentioned, Stuart Park and Hawthorne Animal Hospital. He believes the third party review would answer his questions. Councilmember Lewis addressed the order of priorities and the lack of a contract on the site in which the conditional use is sought. Councilmember Lewis would like to know if both those items can be addressed within the 150 day restriction. Being able to address the concerns within the 150 days and asking T -Mobile if they would waive the 150 day requirement are unknowns. Councilmember Lewis made the motion to deny the application for a conditional use permit by T -Mobile. The applicant has not demonstrated a diligent effort relative to the order of priorities nor does the applicant have a contractual right to the property. Councilmember Marshall seconded. Roll call vote: Ellis -yes, Lewis -yes, Morrison -no, Marshall -yes. CLAIMS: Computer printout claims for December 17, 2014 were presented to Mayor England and Council. Councilmember Morrison motioned to approve the claims as presented. Councilmember Ellis seconded. Roll call vote: Ellis -yes, Lewis -yes, Morrison -yes, Marshall -yes. ADJOURN: Kevin England, M or Rich Morgan, City Clerk