HomeMy WebLinkAbout2001-04-02 Minutes•
MINUTES OF A MEETING OF
THE BOARD OF ADJUSTMENT
A regular meeting of the Board of Adjustment was held on Monday, April 2, 2001, at 3:45 p.m. in
Room 111 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas.
ITEMS CONSIDERED ACTION TAKEN
Approval of the Minutes Approved
Page 2
BA 01-5.00: Variance (North College Development, pp 484) Approved
Page 3
BA 01-6.00: Variance (Nextel, pp 448) Denied
Page
MEMBERS PRESENT MEMBERS ABSENT
Larry Perkins
James Kunzelmann
Michael Green
Thad Hanna
• Marion Orton
Joanne Olszewski
Michael Andrews
•
STAFF PRESENT STAFF ABSENT
Dawn Warrick
Sheri Metheney
•
•
•
Board of Adjustment Minutes
April 2, 2001
Page 2
Approval of Minutes
Perkins: This is the April 2, 2001 meeting of the Fayetteville Board of Adjustment. The first
item to consider today will be the minutes for the March 5, 2001. Were there any
changes to those minutes that you received in your packet? None having been heard,
please enter those into the record.
Board of Adjustment Minutes
April 2, 2001
Page 3
BA 01-5.00: Variance (North College Development, pp 484) was submitted by Richard P.
Alexander of North College Development for property located at 9 N. West Avenue. The property is
zoned R -O, Residential Office and contains approximately 0.23 acres. The requirement is for a 10' side
setback. The request is for a 6.25' side setback (a 3.75 variance).
Perkins: That brings us to our first appeal, BA 01-5.00 submitted by Richard P. Alexander of
North College Development for property located at 9 N. West Avenue. The property is
zoned R -O, Residential Office and contains approximately 0.23 acres. The requirement
is for a 10' side setback. The request is for a 6.25' side setback (a 3.75 variance). Does
staff have input on this please?
Warrick: Yes sir. This project is located at 9 N. West Avenue which is the property behind the
Cooper House which is one property north of the intersection of West and Center
Street. The Cooper House, as well as this building, have recently been renovated and
this building built and developed into an office development. The applicant is in the
process of dividing the two properties through a lot split and in order to apply for the lot
split, requested a survey so they could get the information together for the lot split
request. When that survey was brought forward, they were made aware of the fact that
the building was not built according to the plan that was submitted for the building
permit which was the plan that was submitted for permitting and did meet the
requirements of the 10 foot setback on the north and south property lines. The
applicant, in his letter to the Board, speculates that the contractor pulled from a fence
instead of from property pin in order to place the foundation of the structure and
therefore, due to contractor error, we have a situation that the building is out of
compliance with that required 10 foot setback. Staff is recommending approval of this
variance request. Surrounding properties include the Cooper House to the east, to the
north there is a residential structure, to the south there is a residential structure that is
currently under renovation and the applicant is also the property owner on the south,
the west there is a large railroad right-of-way and industrial use is beyond that. The
property is sloped rather significantly. There is some topography on the site that makes
it somewhat of a challenge for developments. I think that's the basic low down on
what's happening with this particular request. The applicant is here, Rick Alexander as
well as Rob Merry -Ship, his partner, to answer any questions that you might have.
There was a survey submitted with your agenda information and that reflects the follow-
up survey, the after survey that shows where the setback violation is occurring.
Perkins:
Alexander:
Mr. Alexander, do you have anything to add to this?
Just that I was surprised that it wasn't where it was supposed to be. This was exhibit
•
Board of Adjustment Minutes
April 2, 2001
Page 4
"A" and was attached with our application. When we laid this thing out we had ample
room on either side for a setback. At the time we laid this out, there was an existing
fence on both sides that had been there for decades. This house was built in the
1880's. We had renovated that and then we built this structure back here. We had a
survey, we thought we had done it right when I re -commissioned Allen Reid to do the
survey for the lot split, he basically said "Do you want the good news or the bad
news?" The bad news was that we were off by 3 feet, we had a 13 foot setback on
one side and a 6 point something setback on the other side. The fence was just about 3
feet going both ways, so the only thing I could guess was that when they laid this
foundation he pulled it off the fence There was certainly no benefit to us to do it that
way. I would just assume that they put it within this appropriately. When Alan Reid
did the survey, that's what we had. We already had a lot split application in process
and we were advised by Planning to seek a variance, so we've done that. Our -
neighbors to the north don't have any problem. I don't think any of our neighbors have
any objection.
Warrick: Staff has not received any comment.
• Alexander: I think our neighbors are pretty supportive of what we are doing down here.
Perkins: Does anyone else present have input on this appeal9
Olszewski: Was the survey clearly marked?
•
Alexander. They staked the corners again when I went down there and looked at it. I remember
going down and looking at it when they had staked it and honestly, we had a builder
and engineer so I didn't pay a lot of attention to be honest with you.
Olszewski: It was staked?
Alexander. The comer down here yes.
Olszewski: For the record, who was the contractor?
Alexander. Leon Wilson.
Olszewski: Has this been something that's happened at other times?
Warrick: To my knowledge, we don't have record. We talked bnefly, maybe one or two
•
•
Board of Adjustment Minutes
April 2, 2001
Page 5
Olszewski:
Warrick:
Alexander:
Kunzelmann:
Alexander:
Olszewski:
Alexander:
Andrews:
Alexander:
MOTION:
meetings ago, about starting a log of contractor error type variance requests that we
hear. In looking back and doing the research on this particular project, I have not
come across that contractor's name in other variances that I could have looked at.
Granted, I don't have a real good oral record with regard to that at this point in time. I
don't believe that this is something that is perpetuated with this particular contractor.
I remember Tim said there is no written log but he had it kind of in his head.
This was not of the names that keeps coming up frequently.
In all fairness to him, I was pretty pleased. He's a good contractor. I was
flabbergasted that it was off.
In your conversations with him, did you ever ask him where he measured from?
I haven't talked to him since this. This just came up. I haven't seen Leon in two years,
since he did this project. We kind of got out of doing these projects and went to more
commercial stuff. I really haven't used him. We use different guys now, bigger firms.
No, I wouldn't even know how to get in touch with him. I'm dust guessing that he
measured off the fence because it s the same amount on both sides. I got a 13 foot on
one side and 6 on the other. I'm dust guessing that's what he did.
It might be helpful for him to know so he doesn't make that kind of an error again.
I did try calling because I was trying to actually send somebody to him that was looking
for a contractor and I haven't been able to get in touch with him, to be honest with you.
I have a question about the stairway. Is that not, anything over 3 feet is supposed to be
within the setback.
It's not 3 feet from the ground. The stairway down there is about 2 feet off the ground.
We were aware of that at that time we did this. We turned the corner down there dust
a little bit to make that a better run in the back but we made sure that we weren't above
the 3 foot height when we did that.
• Green: I sort of understand how this kind of mistake could happen, if you've ever tried to
measure on a hillside with trees in the way and everything. It's sort of like finding a
•
•
•
Board of Adjustment Minutes
April 2, 2001
Page 6
Andrews:
Alexander:
Hanna:
Alexander:
Hanna:
Perkins:
point of reference is kind of difficult. I don't see any problem with this, especially if the
neighbors are not having an issue with it. I don't think there is any other reasonable
alternative to approving the variance. If there are no other concerns, I move we
approve the variance.
This is from the overhang?
Yes.
I'll second. I just want to say, what an improvement to that piece of property. I've
been driving by that property for 30 years and you guys did a great job of keeping an
old house and bringing it back in fair condition.
We tried to do a good one on this one too.
You can't even see that building down there unless you are looking.
We have a motion to accept and a second. Any further discussion? Will you call the
roll please?
ROLL CALL:
Upon roll call BA 01-5.00 is approved by a unanimous vote of 7-0-0.
Board of Adjustment Minutes
April 2, 2001
Page 7
BA 01-6.00: Variance (Nextel, pp 448) was submitted by Chris Villines on behalf of Nextel for
property located at 779 Ruth Avenue. The property is zoned R-1, Low Density Residential and contains
approximately 1.91 acres. The requirement is for a 25' front setback. The request is for a 11.4' front
setback (a 13.8' variance).
Perkins: That brings us to the next item on the agenda, appeal number BA 01-6.00 submitted by
Chris Villines on behalf of Nextel for property located at 779 Ruth Avenue. The property
is zoned R-1, Low Density Residential and contains approximately 1.91 acres. The
requirement is for a 25' front setback. The request is for a 11.4' front setback (a 13.8'
variance). Does staff have background on this please?
Warrick: The property at 779 Ruth Avenue is actually approximately a 2 acre tract of land
owned by Arkansas Western Gas. They have facilities located in this lot to include a
wireless communications tower. The tower has recently been approved
administratively to be replaced. Some history on this, the City has a wireless
communication facility ordinance. In August of 1999 it was modified after a
moratorium on cell towers. That modification provided for replacement towers and co -
locations to be considered as an administrative request. Arkansas Western Gas came
to the City late last year or early this year with a proposal to take down their existing
tower and replace it with a like kind tower. Because of the proposal and the issue
surrounding the proposal, there were portions of the revised 1999 cell tower ordinance
that were taken back to Planning Commission and to City Council for clarification. This
has been kind of a long drawn out process of Arkansas Western Gas replacing their
cell tower in this location. It's a lattice type guyed structure and, at this point in time,
after those modifications were made at the City Council level, I believe that was in
January of this year, Arkansas Western Gas did go through with their application for a
replacement tower. Part of what they are doing at this point in time is providing for
different facilities with different carriers that are going to have equipment located on the
tower and Nextel is one of those carriers that will be locating on the replacement tower.
The replacement tower is not obviously in the same place as the onginal, the original is
still up and the replacement tower will be erected and a certain number of days after
that the existing original tower has to be dismantled. The ordinance states that a
replacement tower must be placed as close as technically feasible to the original tower
with regard to locating the new one on the site, that's important with regard to this
application. Nextel, being one of the carriers that's proposing to locate on the new
tower, was in the process of locating an equipment building on the site to house the
switching equipment, the wires, all of the generators and things that go into their
company being a carrier on the cell tower. At the same time, Arkansas Western Gas
had submitted a building permit application to erect the new tower. Staff, in reviewing
the Arkansas Westem Gas tower application, went up to the site to do a site inspection
•
•
•
Board of Adjustment Minutes
April 2, 2001
Page 8
to make sure that their plans matched what was going on on the site and to make sure
that we knew what they were proposing. The reason that we did this specifically was
that the site plan that Arkansas Western Gas turned in with their building permit did not
match the information that we previously received with regard to placement of the
tower. That is not necessarily anything having to do with Nextel but it does impact the
way that these things come about. In order to issue the building permit for Arkansas
Western Gas, staff went up to do a site visit and look at the property to make sure we
knew what was going on. When we were up there, we noticed that there was a
building that was erected on the site. That happens to be the equipment building that
we are talking about. It was placed without a building permit. Until that time, until staff
went up there and reviewed the other permit, we didn't realize this building was going
in. When we noticed that it was there, that they didn't have a permit, a stop work
order was issued and they were told to get a permit for that structure. They applied for
a permit but it could not be issued because it did not meet the required building setback
adjacent the eastern or front property line. That's why we are here. There is a
representative from Nextel here who can probably speak more to the technical
requirements as far as location of these buildings with regard to distance from the tower
and those sorts of things. Staff is recommending in favor of this variance with
conditions. The conditions that we are recommending include additional screening to
be placed adjacent to the eastern property line, which is the side that this building is too
close to. We are recommending that they replace the existing chain link fence along the
eastern property line, from Rockwood south where the property turns to the east, with
a wood privacy fence. And along that area, one white pine tree be planted for every
15 linear feet. Arkansas Western Gas, as part of their new tower permit, will be
erecting some privacy fencing. Our proposal is that Nextel continue that privacy
fencing further along that eastern property line so that this building is behind the privacy
fence. That is our recommended condition. Another mitigating factor with regard to
our recommendation is that, in this location Ruth Avenue, which is the street along the
eastern property line, curves further to the east and then again to the south, there is a
large distance of undeveloped right-of-way adjacent to this property line. So, the street
is not immediately on the property line, it is removed probably 20 or 30 feet and that is
overgrown with heavy vegetation. We want that to stay because we feel like that is a
screening factor and that aids in screening anything that is on this site. We have heard
some comments from adjoining property owners. This is a completely residential
property area All properties to every side, north, south, east and west, are R-1, low
density or single family residential. In fact, I told a lady this morning that I would relay
some information from her. I got a call from Roberta Stewart, she's a resident of 1580
Rockwood and she's concerned specifically about changes from what the neighbors
were originally told with regard to this project and, like I said, the location of the new
•
•
Board of Adjustment Minutes
April 2,2001
Page 9
Perkins:
Villines:
tower is not specifically where Arkansas Western Gas originally stated it would be.
This is Nextel, their location is basically driven by the location of the tower so it does
have an impact with what the property owner's were originally told. One thing that is
important and part of the reason that staff is recommending in favor of this request is,
we have a relatively new cell tower ordinance that the City Council, in a special
subcommittee they developed in order to review and revise this ordinance, determined
that the City of Fayetteville was going to encourage the use of existing facilities or the
existing locations for facilities and not to encourage new towers within the City. This is
a trade out, we are going to take one tower down and put up another one, we won't
end up with two towers at this particular site. Fayetteville encourages co -location of
wireless communication facilities. This tower will provide for four different carriers to
be located on the same facility. With regard to trying to abide by the wishes of the City
and City Council with regard to wireless communications facilities, we feel like it is
more in the interest of the City to maintain one facility instead of each of these carriers
having their own monopole or tower located in a pin cushion fashion across the City.
We are being somewhat successful with co -locations. Since 1999, when this new
ordinance was passed, we have not had any requests for new towers. We had this one
request for a replacement tower and at Planning Commission level right now we are
looking at the first new monopole request. Everyone, since that time, has chosen to co -
locate on tall buildings and existing facilities and we applaud them for doing that. That
was the whole goal of that ordinance, to minimize the number of intrusive towers that
we have in town. I hope that gives you enough information with regard to this particular
request. The building was placed without a permit and in order for them to get a
permit, they need a variance. If a variance is not something that this Board wishes to
grant, then the building will have to be removed.
Thank you very much. Is Chris Villines present? Do you have anything to add to this?
Honestly our contractor and we assumed that Arkansas Western Gas was in their
process and you can understand now how complicated that was, we thought that the
permit that they were getting included our equipment shelter. That's why the contractor
went out on site and put the shelter in where he did. It was never our intention to put
anything up there without a building permit, we apologize for that. I'm here to answer
any questions that you all have.
Perkins: Aside from not having a building permit, was there also a survey to show where the
building should have been? At least an accurate survey?
• Villins: I can't speak on behalf of the contractor but I think that he believed that yes there was
•
•
Board of Adjustment Minutes
April 2, 2001
Page 10
Perkins:
Villines:
Warrick:
Perkins:
Villines:
Perkins:
Villines:
Olszewski:
Warrick:
Olszewski:
Warrick:
Olszewski:
Warrick:
• City Council level with regard to how far away from an existing tower a replacement
and that variance was going to be granted as a part of the process with Arkansas
Western Gas. We knew that we were crossing the setback line with it, unfortunately
when they move their tower, we have to be within a certain amount of feet of the base
of the tower. We have to stick pretty close to that In order for us to do that, it's going
to require that our equipment be located within the setback area and that's why we are
here today.
This is the current location of the tower now?
No sir, this is the current one, this is the rebuilt one.
The permit has been issued for the new tower.
You are going more towards Ruth?
Yes sir.
Because of that, this building has to be located right here?
Yes sir. It might could go down on the south but 1 think we are talking about a minimal
difference here when you look at how close we are to the setbacks.
I want to go back to what Dawn said. Did you say that Arkansas Gas went ahead and
built this not where they said they were going to build it? Is that what you are saying?
That they were supposed to build it someplace, you were going to build a building
within your needs someplace within that which would have, with what they originally
came in, be within variance? Is that what you are saying?
I don't know that the building would have been within the setback requirements.
Skip your building permit. Are you saying the Arkansas Gas changed where they were
going to put their tower and you gave them permission to do so?
Yes They met the ordinance requirements with regard to placement.
They were within the law?
Right. There were a lot of dimensions discussed at Planning Commission level and at
•
•
•
Board of Adjustment Minutes
April 2, 2001
Page 11
Olszewski:
Warrick:
Olszewski:
Villines:
Olszewski:
Villines:
Olszewski:
Villines:
tower can be.
They were within the law?
The way that the ordinance was approved, the way that City Council approved the
ordinance was not with a dimension, it was with a statement that it be as close as
technically feasible to the existing tower.
Then you went to build the building knowing where they were going to be?
Yes ma'am
Who in your area was supposed to figure out whether you were within variance?
That was the confusion. That's why we are here today. It was our understanding that
Arkansas Western Gas was going to get the variance for us or whatever we needed, as
they went through their process to get the building permit. It should have been and I
apologize for any problems that our company has caused because of that. We built at
the only location we could have whether we went through it at that point or whether we
are going through it now.
My concern always on these things is how did that mistake happen? I appreciate your
apology, I hate that falls on you particularly but what happens in the future so that the
same thing doesn't happen again. That's where I'm curious as to who's really
responsible here for this?
The contractor is responsible, that we used.
Olszewski: Who is your contractor?
Villines:
Loco Construction, out of Little Rock. Believe you me, they know that we are very
upset about it.
Kunzelmann: They never saw a building permit but they put a building on it?
Olszewski: Are they on the list?
Warrick:
They are now.
•
•
•
Board of Adjustment Minutes
April 2, 2001
Page 12
Villines: They should be.
Olszewski: Have they been on the list and did anything happen to them?
Villines: From your vantage point I think the City would just have to watch them pretty closely in
the future In their defense, they did a lot of these sites for us and they have not made
this kind of mistake before. Here they obviously did. We are happy to comply with
the request from staff to put up the privacy fencing as well as the pine trees.
Green: The other carriers that are planning to be on this tower, will any of those carriers also
require a shelter?
Warrick: - Each one of them will. Each one of them will require a building permit to place their
shelter and each one of them will be within setbacks if they get a building permit through
our division
Green: They will probably have the same technical constraints and distance away from the
base of the tower, are we going to be able to situate them all around the base of that?
Warrick: When Arkansas Western Gas submitted their application for a building permit for the
tower structure, they showed sites at the base of the tower that indicated where their
carriers would be located. This Nextel site is the closest to a property line. 1 expect
that each of the others will be able to meet setbacks. They will be required to get a
building permit so we can verify that.
Villines: Nextel is the carrier before you today. We use analog as well as digital equipment,
which means that the shelter that we are using is 9 by 16 feet. You'll notice that many
of the other carriers around here simply use digital equipment and their equipment
cabinets are much smaller, roughly half the size of this table and as tall as a refrigerator.
You can put additional carriers is here that won't all be shaped and sized the same as
this one.
Olszewski: Is there any room where those other carriers are supposed to go for them to put a
building and be within a variance?
Warrick: They've got a two acre site and I think it just depends on how far away from the tower
they can be and whether or not they can shift the building around to the point that it's
meeting that distance requirement and our setback requirements. I don't think that's
impossible.
•
•
•
Board of Adjustment Minutes
April 2, 2001
Page 13
Olszewski:
Warrick:
Olszewski
Warrick:
Olszewski:
Villines:
Kunzelmann:
Villins:
There is a possibility you could just put the building somewhere else?
If it weren't already erected in this location I think that would be possible.
If they didn't?
Sure.
If they didn't get it they would have to take it away. There is another place you could
possibly put it.
With some re-engineering, we would have to look at it. I can't assure you of that but
my guess is probably.
I'm just curious, the other carriers will also have to build structures, has there been any
communication or cooperation in trying to build one joint structure?
You can't do that because each one of them have different specifications and they deal
with different companies. Some of them will deal with Motorola, some will deal with
Nokia, it depends on different companies that manufacture their equipment. You can't
really house them all together.
PUBLIC COMMENT:
Perkins:
Condraw
Does anyone else present have input on this?
My name is Sue Condran and I live on Anson Street, 1585 Anson. Ruth is how I get
up to Rockwood to leave. I pass by this 20 times a day. I think my comments, I don't
know if this is the proper forum for it but I do know that, from the beginning, the
neighbors have been at odds with the gas company and their plans for this since last fall.
It's been a tussle between them and us even to get to this point. My personal feeling is,
that the gas company has misrepresented their intentions for this property from the
beginning and have hidden from the neighbors what they plan to do. In January, I think
I stood up and asked about cell tower or cell phone equipment going on their stand.
They said that they had no plans at this point to do that but that it was their right to put
whatever they wanted up there and at some time in the future they would do that. I'm
under the impression that Nextel had contacted them many months before that In
other words, I don't have facts but I'm thinking that, that Nextel contacted them and
the gas company, in order to take Nextel's business, decided they needed a larger
•
•
•
Board of Adjustment Minutes
April 2, 2001
Page 14
tower. I think that's what got the ball rolling. When the gas company presented things
to the City Council and to the Planning Commission and Ordinance Review Committee,
they brought out EMS, Fireman and Policeman and talked about the nobility of this
tower, we needed it for the people in the valley 911 couldn't reach them. I walked
away thinking "Oh my gosh, if I stand in the way of this tower, someone is going to
die." I'm beginning to think that they wanted this tower not for that but for economic,
for business. All of that is to say, that it makes me suspect what's going to happen from
here on. I don't feel like there is the trust that they told the neighborhood. This is a
very nice residential neighborhood and the spirit of what was going to happen is they
were going to build a little bit larger tower and it was supposed to be a tower of like
kind and, in our minds, that was visually as well. They were going to move it 20 feet to
the north, which is what they said at the meeting. Now they come back and moved it
to the east where they have completely changed that. There was never a mention of
buildings going in. There was never a mention of Nextel. Now I understand that there
could be as many as four buildings going in. We are turning a residential area into a
little industrial area right in the middle. I feel like they have not been honest with us
from the beginning, so I'm suspicious.
Perkins: All the request procedures have met ordinance right?
Warrick: Yes sir. We do not, on any of the wireless communications facilities in town, the City
does not monitor which users are located on those towers or facilities. We monitor the
manner in which they get on there, if they have equipment such as this, we make sure
that they meet requirements. We look at them with regard to screening and try to
mitigate impact. The Arkansas Western Gas property will be required to have privacy
fencing placed before the tower itself, the barbed wire and much of the ratty looking
chain link fencing around the existing site will come down as part of their tower permit
application. Those are requirements placed on Arkansas Western Gas for their
replacement tower.
Perkins: How materially different is the new tower from the current tower?
Warrick: It is a guyed tower. It has huge guy wires that hold it upright and it is larger, to some
degree, than the existing tower.
Perkins: In girth or height?
Warrick: Both.
•
•
•
Board of Adjustment Minutes
April 2, 2001
Page 15
Olszewski:
Condran:
Olszewski:
Condran:
You mentioned that when you originally contacted Arkansas Western Gas, how were
you in contact with them?
Just by coming to all the meetings, Planning Commission, Ordinance Review and City
Council.
You mentioned in January they specifically said they weren't doing that?
I think in January was when the City Council approved the change in the ordinance
which allowed them to build a larger tower which would allow them to hold more
equipment. At that time, we were told certain things, that it would be 20 feet to the
north, that they had no intention of putting large cell panels up there. Now we were
told there would be very nice wood fencing and plantings with a 25 foot setback from
Ruth. Tim Conklin said as much as a 35 to 45 foot setback off of Rockwood.
Olszewski: Dawn, when did they put up this tower?
Warrick:
They are in the process of doing it now.
Olszewski: When did they start putting it up?
Warrick:
It seems like the permit was issued March.
Olszewski: When did you start negotiating with them?
Villines:
Andrews:
Villines:
Andrews:
I believe our first contact was made in May of last year I'm not sure when the actual
negotiation began. That's when we saw their site up there as a candidate. I don't have
any knowledge of when we began talking with them specifically.
It sounds like to me, our job is to decide if this building is able to have a variance or
not. If we don't grant it you are going to move it 10 or 15 feet?
If you don't grant it, we'll check out the feasibility of doing that. If it doesn't work, we
will begin looking for another site out there. We may have to erect a new pole in the
area.
If I was living in the neighborhood, it sounds like the possibility that the building could
not be there, if it was going to be there they are going to do some screening that looks
like it is extra, planting pine trees every 15 feet. Is there any amount of compensation
•
Board of Adjustment Minutes
April 2, 2001
Page 16
as far as trying to make it look better that the residents would feel good about?
Linchenberger:We weren't told about it. I have a couple of things I would like to say very quickly.
One is, we were not told about the buildings. I specifically asked them, I said "Is that
all that's going to be involved with this?" They said "Yes, that's all Just the tower
moved up a little bit." That's not what it is. This building they put up you can see very
visibly, it's big, it's up off the ground in the back. Put it in the middle of a
neighborhood, why can't they find an empty hill someplace where there is not
residences all around it Another question I have which really bothers me, if one cell
phone is supposedly to cause cancer, what are these waves going around us do? I
want an answer to that. I've asked at one point and was told "There hasn't been a
government study on that yet. We haven't got that." I don't think that they should be
bringing it in, we live right there, our children live right there and they don't know what
it does to us. I think they need to put it on a hill where there is no other people around.
I think this is wrong. I had no idea they were going to be there and be there this
quickly.
• Perkins: That's certainly beyond the scope of this panel but I just wanted you to have the
opportunity to express your concerns.
•
Mullane: My name is Michael Mullane, 1510 East Anson. I think it's very clear that the gas
company has been disingenuous with both the City and the neighbors. I think the facts
suggest that they have been Nextel's stocking horse. Nextel is in the cell business. This
ordinance was passed specifically to control cell towers and has a procedure by which
cell towers must go through to be approved and there was a way around the procedure
and that was to replace an existing tower. If you had a tower and it was getting old and
tired and you needed to replace it for safety reasons and you could put the same tower
up for the same purposes. That's how this was presented to the neighbors and the
City. That's what the gas company was going to do. We find out since then that in fact
the gas company has made this a major communications Nextel and cell tower
people who are doing it around the ordinance designed to control their business. That
being the case, fool me once, shame on you, fool me twiceI've learned, I assume the
City has learned and will pay attention to the gas company next time they try to tell us
something. That's not any of your business here, I understand that. It is your business
on this building and this variance. You can understand why I nor the other neighbors
are in no mood to grant them a variance or let them with a strictly commercial
activity in a purely residential neighborhood. You asked earlier how is it that we can
stop this from happening the next time. By granting variances every time they do it, you
are not going to teach anybody a lesson. If police only wrote warning tickets for
•
•
•
Board of Adjustment Minutes
April 2, 2001
Page 17
speeding, nobody would drive the speed limit This is a 9 by 16 metal building, this is
not the Taj Mahal, this is the kind of thing they truck in and drop on a foundation. I
suggest to you that there is no reason at all to grant this variance. They can put this
someplace else on two acres worth of property. It has got to be technically feasible.
We are talking about the electronics up a pole, what we are talking about is the length
of wires. You admitted that there is other places within this property, that would not
need a variance that it could be placed. Don't grant a variance, make them move the
building. I guarantee you that everybody in the industry and contractors will know that
if you make a mistake you may have to swallow the cost of remedy. You do that once
or twice and you won't have mistakes, people will be paying attention to surveys,
people will be paying attention before they lay out the foundation and they'll make darn
sure they get it right the first time. From my standpoint, this is a perfect opportunity to
do it. There is no excuse for what they did here. It's not an outrageous cost, Nextel
can swallow this, ordinary contractors can swallow this. We are talking about basically
a metal building the size of a one car garage. I think you can solve a lot of problems for
yourself in the future here. You dust have to stand up to them and say "Sorry guys, you
are going to have to move the building", for once. I understand that the City would like
to have as many things up in the tower as they want. You've got to understand, this is a
residential neighborhood and what we have is a tower that is straight up in the air and
had little fiberglass antennas bolted to the side of it, that's not what we are going to be
looking at out of our windows from here on out. We are going to be looking at a cell
tower. As far as the ground screening, yes, but that was all in there before this.
Warrick: Not to this degree but, there was existing vegetation.
Villines: First off, if we were to move, and I'm not saying it's technically feasible, it may not be,
if it is technically feasible to move and take us back outside of the setback area, then
instantly any screening we would add to the site is gone. You would not get the privacy
fence where we are and you would be able to see our side from Ruth Road. Leaving it
here and putting up loblolly pines and a fence in between us and Ruth Road is actually
to the benefit of the neighbors. As far as antennas going on the structure, our concern,
now that this can house cellular sites, there will be antennas on there. That's the spirit
of the Fayetteville ordinance. Fayetteville encourages co -location so that we don't
come back again and again and ask for different towers on the same piece of property.
That is to the benefit of these citizens. It is much better to look at one site with three or
four antennas on it than four or five sites in a largely residential area which is what will
happen in the end if we can't co -locate on a site like this. I understand their concems
and we are doing everything we can to fix them. I do think it inures to their benefit to
stay where we are at.
•
•
Board of Adjustment Minutes
April 2, 2001
Page 18
Green: Do we have a representative of Arkansas Western Gas here?
Villines: I'm sorry I can't speak on their behalf. I can understand everybody's concern but we
are Nextel, we are not partners with them, we are going on this site and it sounds like
they've done you wrong because we have been in contact with them since probably
mid 2000.
Andrews: I know you are all upset but you don't want to cut off your nose despite your face. If
they move this building, if it's technically feasible, they are not going to replace the chain
link fence, they are not going to put up a wood privacy fence and they don't have to
plant a bunch of trees.
Prassell• They may not have to but Arkansas Western Gas will. Ann Prassell. I live at
Rockwood Trail and Ruth street.
Andrews: You think that Arkansas Western Gas would have to do that?
Prassell: It is our understanding.
Warrick: This is what I can tell you with regard to requirements for Arkansas Western Gas. I
wish I had a site plan with me, I just brought the building permit. We do have in writing
the requirements or conditions that go along with their building permit for the request of
a tower. They read as follows: "The applicant shall install a six foot high wood board
fence as shown on the site plan, the existing chain link fence located on the north, south,
east and west property line shall be removed as indicated on the site plan." I'll tell you,
that's not the entire fence, that is the area where the fence is visible and it's not
overgrown with existing vegetation. I don't have a site plan to show you exactly what
that means. Second, the Landscaping shall consist of Loblolly pines planted 15 feet
apart along the south fence line and white pines along the north fence line. One
additional pine shall be planted along the north fence line in addition to those shown on
the site plan I think there were five on the plan and we are requesting that they add
another one. All trees shall be two inch caliper at the time of planting. Trees shall be
maintained, any trees that dies or is damaged shall be replaced immediately. Item
three, shoulder work on Ruth Avenue shall be installed as shown on the site plan to
allow on -street parking during inclement weather. Item four, the antenna and
supporting structure shall not be painted unless is it determined after installation that it is
not a neutral color or the FAA requires otherwise Number five, the maximum height of
this tower including all antennas shall be 190 feet. Number six, the tower shall not be
lighted unless requires by the FAA. Number seven, any noise generated by this facility
•
•
Board of Adjustment Minutes
April 2, 2001
Page 19
shall not be heard beyond the site and shall comply with the City's noise ordinance.
Andrews: The first three things on here are already going to be done.
Warrick. Not to the degree that they are placed on this particular application.
Perkins: It sounds like this is the gas company's obligation and not Nextel's but you go above
and beyond that.
Villines: Right. I'm going to guess there is a brush line that starts somewhere in here. I went by
the site and I'm not sure, you are welcome to come up and look and see if I'm right but
that brush line heads from here south along the property line where there is a chain link
fence. That would not be replaced. There wouldn't be a pine tree planting along here
nor would you have a wood fence.
Warrick:
Villines:
I can get the site plan if that would help.
They say that you can see the building now, if the screening goes up, I don't think you
are going to be able to see even the top portion of the building where it is now.
Olszewski: I agree with what you said earlier, some of this is outside the scope of us, whether cell
phones are health hazards. It seems like what I'm hearing is that Arkansas Western
Gas went through the proper channels to put up this facility and they can if they want
add more things to it and be within the law. Being that they are willing to take
advantage of all those specific things that they are allowed to do, why would we grant
them a variance to go outside of what they are allowed to do because someone put
money into building a building in the wrong place without a building permit? Somehow
that is the only thing we really are responsible for. We are not responsible to sit here
and try to negotiate some compensation for your error, whether it was your fault or not.
Villins:
Olszewski:
I can't defend what we did, your right.
I can't see granting for it. Why would we do that? What is so special here that a
contractor came in and put a building where they are not supposed to put a building
without a building permit and without a request for a variance, why would we say that
would be okay? I would like to know.
Villines: We are willing to go back and do the engineering studies for you but I don't think it's
• going to be technically feasible for us to move far enough away from their site.
•
•
•
Board of Adjustment Minutes
April 2, 2001
Page 20
Olszewski:
Villines:
I can understand how that would be a hardship but I still don't see why we would do it.
You might go somewhere else and build another one. That's not our scope. It's not up
to us. That's what the City did, they decided they wanted them there, so it's not really
my responsibility if you are going to go someplace else and build it.
I do think that's in total disagreement with the spirit of the Fayetteville City Ordinance
but I understand your concern.
Olszewski: Building a building without a building permit and without being within variance that's not
in the spirit of the ordinance either.
Villines:
Olszewski:
Villines:
Green:
There are a lot of buildings here around town that we put antennas on and in each one
of those cases we've done something that's really outside of the law or the building
permitting fashion that was in existence with the City of Fayetteville but Fayetteville
changed their ordinances to let us do that because they don't want to see additional
towers. I think you just have to look at the spirit of the law for the City of Fayetteville
and say "Do we want to decline something like this and encourage potential additional
monopoles or towers?"
We don't do ordinances here. We don't do that.
I agree but you still fall under the scope of the Fayetteville City Ordinance, that's what
you are looking at to determine the variance.
I have one point I would like to make or throw out for discussion to see how the rest of
you feel. If we look at the alternatives again, the altemative would be to turn down the
variance request. They can probably relocate this building, distance is the main thing
the way I understand the technology is a distance away from it The problem that we
are going to see though is that they can still meet the requirements of our City
Ordinances, the tower is already going to be there, it's already permitted, it's allowed
under our City Ordinances. It just kind of strikes me that if we absolutely refuse this, as
a punitive act against Arkansas Western Gas then I think that is outside the scope of
this Committee also. I don't think it's up to us to issue punishment. We need to look
at the facts of the site if the facts warrant granting a variance to this thing What we
probably need to do is to see if there is some other alternative which would serve the
purpose of the neighbors to make this more palatable to the neighbors and still
accomplish what we are trying to do. If we tum down the variance, I'm not sure that's
going to accomplish what the neighbors are really wanting anyway because it's
probably going to be even more visible as you come over the hill there from Rockwood
•
•
•
Board of Adjustment Minutes
April 2, 2001
Page 21
Trail on Ruth. It's probably going to be a lot more visible than it would be under this
variance. Probably, I should get some feedback as to how you would all feel about
that.
Olszewski: I have one thing to say about that. That would be really something that I could hear if
this had happened before they put the building up, then we could be talking about that
as far as you had come for the variance at the proper time. That would seem the most
appropriate.
Kunzelmann: A vote against this variance wouldn't necessarily be a punitive move against Arkansas
Western Gas. I don't have all of the facts because I don't know that the building can
be sited somewhere else and I'm amazed that we don't have that information. I feel
:I.- like we need to know that.
Prassell: Assuming the building under discussion here needs to be within a certain number of feet
of the tower and the tower is a fixed point, presumably there are 360 degrees around
that tower of space, we are assuming flat land and I know it is not flat but,.I cannot
believe that there is some other place.
Villines: There is not a full 360° is what I'm trying to show you because there are some existing
buildings and then guy wires that you have to take into account. Generally you are
looking at somewhere along the strip and we can check and see if we can get it back
here, I don't think that is going to be feasible or maybe up here. We can check on that
to see. I feel like it is to your benefit to let it go where it is and put up pine trees and
fencing, than to make us go back and move it back 10 or 13 feet and then not have any
screening there. We are happy to put in the screening where it's at now but if we move
it back, you are talking about us taking away the screening that we would put in there.
Prassell: I assume that the screening that is there, the natural growth along Ruth Street will
remain.
Villines: Somebody just complained about being able to see it from Ruth Street. We are talking
about fixing that problem.
Olszewski• I haven't heard any punishment going on here for Arkansas Western Gas. What I'm
hearing is punishment if they don't take it where the building is, that they are going to
put it someplace that's more unsightly and that's the punishment to the neighbors I'm
hearing punishment for them or that you are going to move it somewhere else and
punish all of us by putting up a cell tower in a second location. That's the only
•
•
Board of Adjustment Minutes
April 2, 2001
Page 22
punishment I'm hearing. I haven't heard anybody saying, on this Board, that we are
going to punish Arkansas Western Gas.
Hanna: I don't think it's our venue to punish Arkansas Western Gas You guys should go to
them as a neighborhood coalition. I appreciate you guys coming up here, that's what
we are here for. I think that makes our neighborhoods strong in Fayetteville. I think
you make some good points. What makes better sense to you guys, to move it back or
to make them beef up the screening to where you can't see it? What would you guys
rather have? I know you don't represent the whole neighborhood but you are the ones
that cared enough to come out.
Mullane: At this point the tower is going to be a lot more ugly than they represented it to be. The
ground is going to be more a lot more ugly than they represented it to be. There is
nothing we can do about that at this point. They are here asking for a favor, "Would
you please grant us a variance because we didn't bother getting a building permit and
we didn't bother to survey it, we didn't bother to put it on the ground where it ought to
be?" I'm telling you as a citizen of this town, I don't see any reason to do this favor for
these people. They made the mistake, they are big boys, they can take care of their
own mistakes, they can fix them. I appreciate his telling me he's only gotmy best
interest at heart, we can appreciate that. I'll make my own decisions and I would just
assume you make a motion to ask them to go someplace else.
Condran: Arkansas Western Gas has misrepresented their intentions from the beginning. They've
pulled the wool over the eyes of the neighbors. Yes they can follow the ordinances to
the letter of the law but those were approved because they misrepresented things, I
think, to the neighbors and to the Planning Commission and to the Ordinance Review
and City Council. Yes, they stayed within the ordinance but who is going to stop them,
who's going to say "Wait a minute. You have misrepresented your intentions." I don't
know what venue we go to for someone to help the neighbors to make them
accountable and to be honest and forthright and say "This is what we have planned
from the beginning, we are going to have four big metal buildings. We are going to
have these huge fat things hanging off of the antenna." I realize that you are just dealing
with one question. Maybe by you not granting this, that puts the brakes on this project,
they say "Let's look at this again."
Prassell: At every meeting we have attended, the issues have always been drawn so narrowly, in
this case today, we have always tried to bring up our concerns about the safety and
health and beauty and so on but it's never the appropriate place to do it. That's part of
our frustration.
•
•
•
Board of Adjustment Minutes
April 2, 2001
Page 23
Perkins: I don't know how to advise you where that venue would be. Do you have any advice?
Warrick: I think we could always go through the process of revising ordinances again. It would
be basically the same sort of procedure of granting Commission, Ordinance Review
Committee, City Council. With what we have in place all that we as staff can do and all
that we can recommend any more of the Commission is to comply with the ordinances
or to do whatever it is within your power to do with regard to applicant requests. In
regard to the Arkansas Western Gas tower, I've got building permit information now, I
would be glad to review the site information with the citizens and let them see what they
proposed in regards to screening and landscaping for the tower location. Beyond that,
this Board doesn't have the authority to make changes to ordinances, the Planning
Commission does not either, the City Council is the Board that can make changes to
ordinances or can affect new ordinances.
Perkins: I guess back to Mr. Hanna's question to the group here that constitutes the neighbors.
Moving the building or not moving the building is not going to change the location of the
tower, it's still going to be 100 something feet tall and by ordinance has the right to put
the extra antennas on it. Absent of that, is there anything in addition to what this fellow
has said they would do to help screen it, that would be more satisfying to you?
Villines: We can go with a taller fence, we'd be willing to do that.
Perkins: To completely shelter the building.
Villines: Sure. I'll be happy to go with eight feet if that will help any.
Hanna: Mr. Mullane said "No", Ms. Condran said "No", Ms. Prassell said "No"
Brill: I'm Howard Brill, 1708 Anson. I agree with everyone else. I will ask you to decline
the variance. I would hope that Arkansas Western Gas would continue with the
promises that they have made to us. I think all the neighbors received a letter in
December from Arkansas Western Gas in which they talk about what they plan to do
and as some have said here, they said the tower is used by Washington Regional
Medical Center, Central Emergency and Regional Fire and Sheriff, they didn't mention
commercial suppliers at that time. They mentioned it was likely one facility will be
installed near the base of the replacement tower, now we hear there is likely to be
several facilities at the base of the requested tower. I would hope that they would be a
good citizen and that they would carry out what they promised to do and maybe go
even beyond that in privacy and landscaping and adhering to the promises they made
Board of Adjustment Minutes
• April 2, 2001
Page 24
•
•
Green:
the neighborhood. I think it's important to require people to live up to the building
permit requirements and ordinance requirements and I would be inclined to turn down
the variance request.
One other point or question, whichever way we vote today, of course the next step of
either party is to the Circuit Court as I understand. Either Arkansas Western Gas or
Nextel.
Villines: We are not involved with Arkansas Western Gas at this level, it's just Nextel.
Green: Or the neighbors if it comes out against them. That is the next step or the next remedy.
The main concern that I have is to make sure that this body does not issue punishment.
That's really my main concern. I want to make sure that we deliberate and we make
our decisions based on fact and not emotion and we proceed that way and can fully
defend that. That's my only point.
Andrews: To answer your point, I think one of our main conditions is that "Special conditions and
circumstances exist which are peculiar to the land, structure or building involved which
are not applicable to other lands...", I think that if they would have planned this better
that they could have built it within the variance. It sounds like there is no compromise
that will be suitable to the neighborhood to allow them to be able to build outside of
those variances and for the neighbors to be happy which is my biggest concern. If I
was living there, I would want it screened too. I hope they are not unhappy when the
building is moved and there is no screening whatsoever.
Kunzelmann: 1 don't know that the issue is punishing anyone. The issue is rewarding someone for not
following proper procedure.
Andrews: They are going to pay one way or the another. They are either going to pay to move
the building or they are going to pay to do as much screening as possible. It's one way
or the other, which do you want? Do you want the building a little off and put up a
bunch of screening and trees and hope that makes the difference or move the building
and not have any screening? The neighbors have spoken their piece.
Olszewski:
Villines:
Olszewski:
Put it in the right place in the first place.
With absolutely no screening.
Maybe we will have to look at why there isn't screening.
Board of Adjustment Minutes
• April 2, 2001
Page 25
•
•
Villines:
Perkins:
Villines:
Olszewski:
Condran:
Villines:
Condran:
Warrick:
Condran:
Warrick:
Condran•
Warrick:
MOTION:
Andrews:
If that's feasible too. I want to make sure I add that. I'm not sure that we can.
I'm sorry, say it again.
I'm not sure that we can. I'm not sure that's feasible. We'll check on that. If the vote
today is "No", we'll check on that. If it's not feasible, we may look elsewhere in the
very general area to put up another site.
You mentioned that.
Why can't they move the building to the proper location and still screen it from the
street?
It's going to cost us enough to move the building that if we move it back outside the
variance area, if that's feasible, if we move it outside the setback, I don't know that we
got money left over on this project to go plant trees, keep them up and put up a screen
on the east side of the property. I can't speak on behalf of my company.
Why isn't Arkansas Western Gas going to screen that portion, the City didn't ask them
to?
There is screening provided by Arkansas Western Gas.
For that portion?
There are areas within the fence site that the existing screening that is more vegetation
or a fence than what we could require to provide that type of screening that will be
remaining.
You can see through the vegetation to the building now. To me that would necessitate
more.
I can show you what the permit application requires if you would like to see that. This
would have been additional screening in that location.
Based on the fact that I don't believe that the variance meets the special conditions of
our zoning regulations, I will move that we deny the variance.
•
•
•
Board of Adjustment Minutes
April 2, 2001
Page 26
Kunzelmann: Second.
Perkins: We have a motion and a second to deny the variance request. Any further discussion?
Call the roll please.
ROLL CALL:
Upon roll call the motion to deny BA 01-6.00 passes on a unanimous vote of 7-0-0.
Perkins: If we have no old or new business, we stand adjourned.
BOA Mtg.
4-2-01
BA 01-5.00
North College
Development, pp
484
BA 01-6.00
Nextel, pp 449
Motion to Deny
MOTION
Green
Andrews
SECOND
Hanna
Kunzelmann
L. Perkins
Y
Y
M. Andrews
Y
Y
M. Green
Y
Y
T. Hanna
Y
Y
J.
Kunzelmann
Y
Y
J. Olszewski
Y
Y
M. Orton
Y
Y
ACTION
Approved
Denied
VOTE
7-0-0
7-0-0
•