PLANNING COMMISSION MEETING
SEPTEMBER 8, 2009
I. CALL MEETING TO ORDER
The meeting was called to order at 7:00 p.m. by Chairman Tony Butrum.
II. ROLL CALL
Members Present: Richard Bauer, Tony Butrum, David Okum, Carolyn Ghantous, Lawrence Hawkins III, Steve Galster, and Tom Vanover
Others Present: Don Shvegzda, City Engineer; Anne McBride, City Planner;
Randy Campion, Building Inspection Supervisor
III. MINUTES OF THE REGULAR MEETING OF AUGUST 11, 2009
Mr. Dave Okum moved to adopt the August 11, 2009 Planning Commission Meeting Minutes, Mr. Steve Galster seconded the motion, Carolyn Ghantous not voting as
she arrived late and Tom Vanover abstaining; the Minutes were adopted with
5 affirmative votes.
IV. REPORT ON COUNCIL
No report presented for Council.
V. OLD BUSINESS
Chairman Butrum: Wireless Communication Tower Conditional Use Permit
11970 Kenn Road; this is continued in progress. If anyone in the audience intends to speak for this hearing they will need to be sworn in.
(At this time Chairman Butrum did swear in audience members.)
Mr. Nathan Meyer: I am with PBM Wireless representing American Tower Corporation and Cricket Communications tonight. With me is Tom Breidenstein with Bosse Law; Tom is an attorney and Certified Land Use Planner and he is also the Chairman of the Planning Commission in neighboring Glendale; he grew up in this area as well, also Julio Ruez is the RF Engineer with Cricket Communication and is here to help answer any technical questions about the RF signal or anything of that nature. Julio created the maps with the signal levels to demonstrate why co-location is not feasible in this particular instance and why the tower is needed.
We have taken your concerns and questions and thoughts into consideration and tried to address them in some of the ways that you suggested that we do. I believe that this will paint the picture for you of why we believe this site is needed for Cricket and why and how we have addressed any potential impacts to the neighboring residential neighborhoods and hopefully any other concerns as well.
(At this time Nathan Meyer used a Power Point demonstration to explain information concerning the proposed tower.)
Mr. Meyer: We did supply revised sets of drawings. We revised the landscape / tree preservation plan to remove any Ash trees; in this instance there are three types of Maples spread across the property and we have also shown that there is a sanitary sewer line, we have worked with the City Engineer to identify that location to show that we are not going to impede or cause any problems for that. The sanitary sewer line actually crosses where there is existing pavement right now, through the parking lot of the Church; we do not have to do any construction on it or over it and we remain outside of the easement along our access road and in the area where we have our compound for our new tower.
As far as the setback to the residential area, the closest is 387 and we need variances from the north, the east and the south for this site. There is no place on this property at any height that we could place a tower and meet the setbacks required by the ordinance to residential districts. We have met all the other setbacks, except for those three.
The slide (shown) demonstrates a list of the trees that are being removed out of the access easement and out of the area that Cricket will have fenced apart and the entire lease area that is not going to be fully developed yet at the early stages.
Another slide (shown) demonstrates the species of the trees that will replace all of the ones that are being removed per your tree preservation plan and I believe we are actually putting three or four additional trees than what is required by your ordinance.
The fence will be vinyl coated chain link and it is in an area that is heavily wooded, so we are asking that you would take that into consideration and hopefully the existing trees will suffice for landscaping. The surface of the access drive will be some type of a surface to be agreed with by the City Engineer that is porous and pervious so that we dont impact the drainage for the subdivision that runs through that access road. The gate is between the Church parking lot and the new access drive for the cell tower site to keep vehicular traffic and others from using that except for those who should be accessing that site.
On the 149 monopole we will have the ability to have Cricket at the top and then four other co-locators. T-Mobile actually did the lease with Calvary Pentecostal and American Tower has now been assigned that lease agreement. So T-Mobile was initially desired to build a site here and they lost funding in the year in which they were doing that; when funding comes back up they are hoping in 2010 to co-locate on this site should it be approved. There would be three other spaces for co-locations.
In each packet there is a letter from Julio and Cricket; in that letter he addresses point by point that Cricket is active in this market and they hold a license for the 1900 band, block C-4 in the Greater Cincinnati area; they are not licensed for 800 megahertz which has better penetration and can propagate further from the source than can the 1900 megahertz, so their sites will need to be closer together than a carrier that has 800 megahertz. Three years ago Cricket launched in the Cincinnati market and began to provide service. This is a pretty vital point to some of the questions that were brought up last time; as a result the other carriers had mature networks and Cricket was left to design around existing sites to co-locate by zoning laws and by their preference because it is cheaper for them to co-locate than it is to have a new site built. Because of that they were left with the leftovers; they had to
take the lowest space available on each tower, that causes them to suffer in their footprint. Because they are lower they cant propagate as far as other carriers that may have gotten there first and are higher. Some of you may have tried your phone to see if it works and it might work, and it could be because you are on an 800 megahertz or it could be because they have higher elevations on the surrounding towers than what Cricket was able to get because Cricket came in last.
This also explains that the area of concern, which you may remember is a yellow oval on the maps (shown by Power Point) basically they are looking to cover that area along Kenn Road between West Kemper and Woodridge Boulevard; their lack of signal strength in this area is limiting their ability to provide service to customers in those neighborhoods and it is their desire to improve coverage to provide reliable indoor coverage to their customers; that is what their customers demand.
Just to reiterate what I have explained, Cricket does aspire to locate new sites on existing structures whenever possible, if it is a rooftop or existing tower or water tank or high tension lines; except for water tanks and we are going to show examples of where those are in this area that cannot utilize for this particular application.
Cricket has reviewed multiple options and they have not found any possible co-locations on existing structures to improve their indoor coverage in the area of concern. They have their signal levels on the maps (shown) -88 DBM is indoor coverage; -96 is vehicular coverage; -99 is on-street coverage. The indoor coverage is one of the main concerns of companies addressing at this time. In order for them to provide and let their customers know that they will have indoor coverage they need to be able to let their customers know that they are in a home in an area where they have at least a -88 DBM signal or stronger. The lower the number of DBM, the higher the signal strength.
The last point, having good indoor coverage will allow Cricket to provide higher data transfer speeds for their broad ban products so if someone has internet connections or other broad ban connections they can get better connections for their home.
Cricket has optimized their antennas on the new maps that we have given you, they have switched out to the best antenna that is available to them, they have increased the power and the signal strength and everything that they can do to optimize; if you compare the maps to the packet of information sent in August you may see some differences because Julio took the time to blast the signal to the best that it can be on all the surrounding sites to show what the coverage would be if that were the case and still there are issues that cannot be addressed without this site. The only feasible solution to provide adequate and reliable service to this area of concern; this location will address the coverage holes and the indoor coverage issues Cricket is having in the area of concern.
We looked at 14 possible options where Cricket could locate antennas; the first four are on this site, this proposed tower at different heights: 149 being the tallest, which is our proposal, 125 next, 110, and 99 being the lowest. They have also looked at an American Tower monopole which is located on or next to the property at Daysprings Church near Winton Road and I-275 and 110 is available; up on Mack Road by Mercy there is a large guide tower, and 120 could be available however that tower has structural issues, it doesnt propagate and provide signal into this area of concern and Cricket is looking at another search ring in that area to address problems up there; north of the Mack Road site where Kenn turns into Ross and hits Woodridge there are some transmission lines and per Fairfields zoning ordinance you can put antennas on transmission line that is 120 or taller and in this case it is, and we have maps to show why this will not accommodate their needs; the next location is the Crown Castle monopole, that particular site is in West Chester and that does not work; there is another American Tower site south of town and that will not work; Cincinnati Bell has a site just south of the Dayspring Church in one of the business districts off of Winton road and that site will not accommodate this area; that site and the other American Tower, the problems from shooting from the west into this area, there is a ridge that causes a block for the signal and that signal just overshoots this whole residential area where Cricket is trying to provide coverage here they have looked at the steeple on Calvary Church and the very tip-top of that is 56 and you couldnt put antennas at the very top of that because structurally it wouldnt hold and it would look terrible, so they would go lower than that but even at 56 they cannot provide the coverage that they need; The Howard Johnson sign where Sprint has antennas down at the southwest corner of I-275 and Route 4 behind Perkins, they show that at 100 and that doesnt work; the old Ramada on the northwest corner of Route 4 and I-275, they show 100 and assume that if you build 45 tower on top of that still it cannot provide the coverage because of topography.
(Mr. Meyer demonstrates, using Power Point, all of the existing towers in the surrounding area, and the topography. He also explains from the slide (shown) Crickets existing coverage or perhaps better than existing coverage because Julio cranked up and optimized the signal for the shown demonstration.)
Another question was, does Cricket have customers in this area or are they just trying to provide this site so they can get customers in this area, each red dot (shown) represents the billing address of Crickets existing customers. Inside the yellow area of concern (shown) it pretty much matches up with any other area where there is a concentration of Crickets customers; they do have quite a few customers in this area. Cricket does not provide long term contracts, they dont require that of their customers like other carriers do, so any given month a customer could decide they dont want to use Cricket any more and use another carrier so they want to take care of these customers and provide the coverage that they demand and need. With the proposed site at 149 the whole area of concern, almost all of it is filled in with blue- indoor coverage; dark green-in vehicle coverage; light green is on-street coverage and white is no coverage; this area is filled in quite well except for the very northern part and that is another challenge of the topography. Cricket can use this site very well to accommodate their needs. If a customer of a cell phone company gets a cell phone and picks it up for the first time to use it in their home and it doesnt work they will be upset, if it doesnt work in their car or driveway they are going to be upset, if you have to step out of your car and use your phone because that is the only way it works out in the yard that is not practical; cell phones are not so much a luxury as they used to be they are a necessity for most people and a lot of people use them exclusively. My wife and I do not have a land line and a lot of our friends dont; why would you have a phone where you are hooked to a wall and you cant go more than 10 from when you can walk around with your cell phone wherever you want. Cricket can live with the dark green in-vehicle coverage in some areas but if most of this area is covered in dark green that is not going to help them out very much because their customers do demand that indoor coverage.
At 125 at this proposed location we lose a little bit from the north, it actually takes coverage to a street away to the north at this height, but Cricket can live with this because they can still get most of the area where there are homes, they can get indoor coverage and to the south there is solid green through that area so they believe the customers will be satisfied; this level would work for them, it doesnt work as well obviously.
Just to let you know at 149 we can do four additional co-locators, at 125 we can do two additional co-locators for a total of three; and keep in mind T-Mobile is coming on next year if they get budget approval. There are about five or six carriers in the market.
At 110 we start to get a very small spot in the south-west part of the area of concern on-street coverage so that indicates to Julio and our RF engineers that they are going to have issues in that area in the future that may need to be addressed in the south with putting in a new site.
At 99 we start to get more spottiness in that south-west corner or the area of concern; to the north we lose more residential areas, as you go lower.
At 99 and 110 will not give Cricket what they want, they want to get this whole area with one site and not have areas that they might have to build new sites in the future; I think that is better for everybody if one site can accommodate.
(At this time Mr. Meyer shows slides of assumed sites in the surrounding areas and the lack of coverage that they provide :)
1. an American Tower site by the Dayspring Church of God
2. right across the street at the Car Max location
3. the Mack Road site by Mercy
4. a 120 transmission/Duke line
5. the Crown site in West Chester
6. a tower to the north outside the boundary of Springdale in Forest Park
7. Cincinnati Bells tower in Forest Park
8. on the steeple at the Calvary Pentecostal Church assuming the 56
9. the Howard Johnson sign at Route 4 and I-275
10. the Ramada Hotel
(Mr. Meyer continues by showing slides of the proposed site and what they will gain or lose at different heights: 149; 125; 110; and 99.)
Mr. Meyer: In the area of concern that is all residential, whether you are in Fairfield or Forest Park or Springdale except for the site that we have identified and we are asking for you to approve, everything else is zoned residential and is being used as residential except for a church or a park here or there.
This is T-Mobiles letter that they have submitted because American Tower did obtain this lease from T-Mobile and T-Mobile was willing to put some documentation into the presentation: The letter says that T-Mobile is seeking to improve coverage near Kenn Road and Highway I-275 in the northern section of their Cincinnati market. They find that the proposed site at Calvary Pentecostal would serve their need greatly and they would like to apply to co-locate on this tower once funding has been approved. (Maps were shown to show T-Mobiles current coverage or lack of coverage and how they would gain from this site.)
Mr. Meyer: I have shown the sites with RF maps that surround this area and you can see that they are at the edge or near the edge of existing residential areas that are untouchable for a new site from a zoning perspective except for Fairfield who allows in any zoning district to go on a power transmission line if it is 120 or taller. We did show a map of how that does not provide coverage for this area.
In the next map I have identified two parcels in this whole large area that from a zoning perspective you can build a new tower; one of them is the proposed site at Calvary Pentecostal, the other site is in Fairfield and you need a variance there but it is outside of the area of concern and it is not going to provide the need of coverage that Cricket needs in this area.
(Mr. Meyer did show slides demonstrating a 4 diameter balloon that was flown at different heights to simulate the tower as it would look from six different vantage points 750 or closer to the proposed site in Springdale.)
Mr. Tom Breidenstein: I am an attorney working with the firm of The Law offices of Thomas W. Bosse, which happens to have its office located in Crestview Hills, Kentucky. As Mr. Meyer pointed out in the beginning of his presentation, not only am I an attorney but I am also a Planner and in that dual capacity American Tower brought me on first as a Planner to take a second look at the application materials and to assist Mr. Meyer and Mr. Ruez in the preparation of the initial information. I am quite satisfied as a Planner that the information presented to you satisfies, meets or actually exceeds your zoning requirements and also the comments that you had at the last meeting. By way of further background, as Nate mentioned, I graduated from Miami University with a degree in Planning, worked as a Planner for many years before going to Law School and during Law School, quite frankly became a Certified Planner by the American Institute of Certified Planners back in 1992. Since that time I have been focusing my practice on planning issues, land use issues and so forth. The other capacity that they brought me on was as an attorney, and as you are probably all well aware there is a Federal Telecommunication Act of 1996 that shadows or over-shadows everything that you are doing. In that capacity I am satisfied that the application as supplemented satisfies those requirements, as well. First and foremost, any denial under the Telecom Act would be a violation of that particular statute because it would not be supported by the substantial evidence in the record; I read the draft minutes that were approved here tonight and was satisfied that there is really nothing in the record, as it exists and I think will be developed tonight, that would support a denial. Everything in the record, all the substantial evidence points towards an affirmation of this application. That is my two cents,
Mr. Chairman, I am obviously available for any questions; Mr. Meyer and Mr. Ruez did all of the heavy lifting but I am here in support for them and in support of this application, as well. Thank you.
Chairman Butrum: Can we look at slide 19 and 21; is this just coverage provided by the new antenna but not any existing antenna?
Mr. Julio Ruez: It is combined, all together.
Chairman Butrum: In this particular slide (21) there is not a lot of white at the top, but there is a bit right at the peak of that ellipse. And if I look at slide 19 it doesnt exist, so the existing coverage seems to indicate that there is better coverage now.
Mr. Ruez: It is combined; every propagation is combined with whatever is there.
Chairman Butrum: Could you explain then why on (slide) 21 we add more white in the upper portion of the ellipse?
Mr. Ruez: What happened is this antenna is facing North, the propagation that you see here is coming through all of this area, so you can see that the coverage is going to change, it is going to change because it is facing North.
Chairman Butrum: But it is going to worsen? Suddenly when we add this new antenna at 149 we add white; so it looks like we somehow have worse coverage than we started with.
Mr. Okum: These slides are presented solely based upon this antenna and what this antenna will do or the combined of existing antennas?
Mr. Ruez: It is combined with whatever is out there right now close.
Mr. Okum: Your existing network; the reason I am asking that is when I went on-line Cricket shows another antenna going northwest of this site in a future development area.
Mr. Ruez: We are looking for a search ring there; a tower, we will say Mack tower.
Mr. Okum: Was that tower incorporated into your presentation?
Mr. Ruez: We tried to go there; the tower has structural issues so we cannot use that tower.
Mr. Okum: So that tower is not calculated into your findings?
Mr. Ruez: No, it is not.
Chairman Butrum: Just so I am clear, is it possible to add a tower and coverage to get worse; because that is what I am seeing? What it would suggest is if it were truly combined, and I dont understand how it works, that it wouldnt be this bad up in that corner if indeed coverage was cumulative. Regardless of how the charts are drawn is it a safe assumption to say that when you add a tower you purely add more coverage, you dont detract existing coverage?
Mr. Ruez: When you add one tower then the coverage are going to change.
Chairman Butrum: But is it going to worsen?
Mr. Ruez: It is going to be different depending on the location you are coming from. Some areas are going to be the same and some areas are going to be improved.
Chairman Butrum: My assumption was probably wrong, I always thought that it is like a flashlight and if I hold it a certain distance up off of a dark table, I get a certain degree of coverage and if I move it up more I get more coverage, and if I add a second flashlight I still get all the coverage of the first flashlight but I simply add coverage from the second flashlight. I was thinking that I didnt lose any light in an area that was already lit from the first flashlight. If I were using the flashlight analogy it is as though that light went away?
Mr. Ruez: It is going to change.
Chairman Butrum: I understand it will change, but it goes away, is that accurate?
So, something that was covered before by an existing tower suddenly lost coverage because of the addition of a second tower?
Mr. Ruez: It is not the same, it is going to change.
Chairman Butrum: I dont want to worry so much about the accuracy of these down to the pixel but is it safe for us to assume as we are deliberating and discussing this that if you had coverage in an area before you dont lose it by adding a tower?
Mr. Ruez: It is going to change.
Chairman Butrum: So we can assume that we are going to get at least as good of coverage anywhere we had coverage before but by adding this tower we are suddenly going to add coverage where there was no coverage previously, which is pretty obvious from where all the blue that suddenly appears when you put the tower there.
(At this time Mr. Randy Campion, and Anne McBride read the Staff reports.)
Don Shvegzda: My comments are a repeat of the last Planning Commission which detail or note that at such time that detail plans were submitted enough information needs to be submitted to regards to the access drive profile and grading limits so that we can verify what is going on there; also the applicant mentioned that the final submittal, whatever type of approved paving surface would be utilized there would in fact be pervious pavement surface. Also, so far as the verification that there is no effect of the channel where the 36 storm sewer outlets the adjacent subdivision. The matter of the sanitary sewer was addressed by the applicant; they are not in conflict with the existing sanitary sewer.
(At this time Chairman Butrum read an email that was received from a resident, John Ponath at 711 Cedarhill Drive.)
Mr. Breidenstein: What was the date?
Chairman Butrum: August 10th.
If anyone in the public would like to speak, please indicate so; and if you would come to the podium.
(Chairman Butrum did swear in Mr. Tom Ellis as he was not present when other members of the audience were sworn in earlier.)
Mr. Ellis: I am the Executive Pastor at the Calvary Church and our
Pastor Norman Pasley II was trying to get here tonight but is stuck in Philadelphia.
We want to lend our support to the proposed tower; we are very supportive of the green-line and the things that you are doing to make Springdale very nice. This proposal was not something that we pursued, they came to us.
Chad Faubert: I was here August 11, 2009; I am the Financial Officer for the Church and we are in favor of this. I have a signed contract I signed last December with
T-Mobile for an option to build a tower on our property as he had referenced they did not possess the capital at that time to go forward with that event however Cricket came along, or actually American Tower has come and assumed that option. I also have on my desk another letter from another tower company that is looking for a property to build a cell tower, and in the last ten months or so I have also had another call from another tower company wanting to build on our property, as well; I guess it seems to be a very desirable spot. The Church is in favor of this opportunity to provide additional ministries and support to our community.
(As no additional members of the audience stepped forward to speak,
Chairman Butrum closed the public portion of the hearing.)
Mr. Hawkins: One of the primary concerns obviously is the residents that are around this area where this tower is going to be built and looking at the other sites they are all on the edges of residential areas as opposed to right in the middle; where this one would be located. It is a legitimate concern. These pictures are all showing the vegetation that we have right now obviously but not how things would look in the Fall and Winter months. To the applicant, I wanted to know indicated by your letter, you are currently licensed with PS1900, and you are not licensed for 800 megahertz?
Mr. Ruez: 1900.
Mr. Hawkins: Are most carriers licensed with 800 megahertz?
Mr. Ruez: This is the license provided FCC, for us 1900-C4. Every company has different frequency, they cannot have the same frequency because there is going to be interference between the companies.
Mr. Hawkins: But 800 megahertz is stronger, right?
Mr. Ruez: Yes. Once you go up in frequencies you have more losses on the penetration, so that is the problem. If you have 800 megahertz and you are on top of the tower you can get better penetration.
Mr. Hawkins: So are you saying it is not possible to get licensed at 800 megahertz?
Mr. Ruez: The companies already have it.
Mr. Meyer: The FCC holds auctions when these become available; all of the 800s are already used up by carriers and they have auctioned off the 1900. And actually the 1900 came after the 1800 megahertz; it used to be an old military frequency that the military has given up and the FCC decided to market it off to the general public and that is why we have PCF carriers these days and it does help serve better for data transfer and things like that.
Mr. Hawkins: Mr. Breidenstein, regarding the Telecom Act, are you representing the Telecom Act as referencing getting more coverage or just to provide coverage?
Mr. Breidenstein: The Telecom Act doesnt go into that specific of detail; but the Case Law surrounding it requires and the regulations that effect Cricket and the other providers mandate that they provide adequate and reliable coverage, so it is different for every site, different for every provider.
Mr. Hawkins: But because it specifies what type of coverage, it is just saying coverage in the end. The primary purpose of the Act was to make sure the carriers were in a position to provide coverage; period?
Mr. Breidenstein: That is correct.
Mr. Hawkins: So, in terms of the goal of Cricket it is really going beyond the base purpose of what the Act was, were talking about not just trying to get coverage but we are talking about indoor coverage.
Mr. Breidenstein: What they are talking about, and the evidence will support, they are asking for more than just indoor coverage certainly that is a big goal of this site to provide indoor coverage but they are also asking for out-of-vehicle coverage and coverage for the areas that dont have coverage. So, the Case Law goes into a lot of detail about providing coverage in areas where there are gaps and that is really under the branch of the statute that deals with the effective prohibition of coverage. There is no hard and fast rule on that but the Case Law again says that these providers also have to provide coverage where there are gaps; if there is a gap in the coverage the Case Law again talks about zoning decisions that effect gaps and these guys have to be able to cover those gaps.
Mr. Hawkins: But when we are talking about gaps we are talking about white space we are talking about no coverage, right?
Mr. Breidenstein: Generally that is the way the case law comes out, but that is certainly a fact pattern here, as well. With the white spaces that you saw as well as the light green. The uncontraverted testimony is that those light green spots is effectively no coverage the way people use their cell phones today.
Mr. Hawkins: Light green is still some coverage, and I just want to be clear in terms of the record, that the applicant is claiming that the primary issue is indoor coverage. The map that we have right now is talking about the current coverage a small portion is white, most of it is green of some type or blue; so we are not really talking a big part the search ring as it sits here right now being without coverage?
Mr. Breidenstein: That is the evidence that is testimony, that is correct, Mr. Hawkins.
Mr. Galster: I know what Chairman Butrum was trying to get at, is when you add a tower you dont decrease the service level to anybody that is presently on your system. I am having a hard time looking at your maps showing the lack of coverage at each one of these particular heights when in fact the white spot is worse than what is existing today. It raises, to me, the validity and the accuracy of the maps, if in fact you can put a new tower up and lose coverage. When they brought up the aerial view of the residential area, yes this site is in the middle of a residential area. That original zoning on that property was residential; in 1997 it was changed to Public Facilities to allow the church to be built. I was on this Board and on Council when this happened; I can tell you that it would have surely been my intention that allowing the change to Public Facilities to allow the Church would be with the understanding that anything that would be added additional to that Public Facilities sure would meet the code. Even though the applicant is telling me that he has met every requirement to our code; he hasnt, the applicant has not met the requirement for the setback to the residential area. Given its sensitive location to residential areas I surely would have approved and voted for that zoning change based on the other zoning code and the other requirements for setbacks being met.
Mr. Vanover: I was out of town last month and I have gone through the previous minutes and it helped me get back up to speed. You talked about the Mack Road tower and the existing Duke Power tower, there is also a water tower up there that is existing today; it would have been interesting to see because that is actually on the peak of that ridge, I would have liked to see that information. Comparing the existing map to the one using the power line near Woodridge, if that tower was located on the existing Duke Energy line, the areas of no coverage are completely different in the southern reach of that yellow eclipse the existing no coverage is reduced by using that Duke Energy spot. There are other towers through there because that is the transmission line that goes through Cincinnati Financial Property, my wife works there and they have been in existence for quite a while. It seems to me there were some other options that could have been brought into play. I dont understand with the addition of another site that your no coverage zone can increase; there is something that just doesnt quite add up.
Mr. Okum: Was it intended that everybody get absolutely perfect coverage everywhere that there is no dead spots or was it for the preponderance of the volume of customers in a general geographic area to receive coverage? I went on line and I looked at coverage maps because there is a firm that looks at AT&T and Sprint and so forth; and I brought up Cricket and what Cricket says their coverage is on their map (12/2008) is different than what we say on these charts this evening. So I am going to say that evidence presented this evening shows a reduction in service by addition of a tower; that doesnt make sense so that means that something is wrong with the chart and the validity of the chart is in question. I was here also on this Commission when we changed the zoning on the Church property from residential to Public Facility and that was a matter of adjusting the property to the actual use that is was going to be. They could have built the Church in a residential district and conformed; but they would have to conform to all of our codes that apply but instead the direction that they went was to be a Public Facility. There was supposed to be an out-building and an activity center built on the southwest corner of the property and that was, I dont believe, ever built. If they wanted to build a monopole there is an expressway access ramp that was originally designed to go at Kenn Road that the state has had to maintain for 50 years since the highway was built that is still sitting there, it is vacant property; I still think that is too close to a residential district. I am very concerned about the validity of the evidence that has been presented by the applicant and I am not quite sure or knowledgeable about the Federal Communication Act and I am not quite sure that it said everybody had to have coverage and have coverage in their basements and inside their homes in that Act. I believe that the purpose of it was that people who wanted to build cell towers could.
Mr. Galster: Have we looked at a combination of more than one site to better cover the area?
Mr. Meyer: There has not been consideration for that; one of the reasons is budget and another is that the zoning ordinance doesnt require that we address areas by more than one site. I beg to differ that two sites would even address the issue and you still have problems with the two existing sites.
Mr. Galster: We have tried to facilitate towers wherever we can, however I dont know that there is a requirement to facilitate for indoor, everywhere use and if that is the case then I would go back to testimony that was given originally by the cell tower companies that would say if they had a blank spot they would put up a repeater or they would put it on the side of a building.
Mr. Ruez: We use repeaters but in areas such as this one we require something bigger with more power.
Mr. Galster: There are telephone poles out there where repeaters could be mounted in order to selectively eliminate blank pockets.
Mr. Ruez: Telephone poles are 20 24.
Mr. Galster: One of the requirements when you look at the Conditional Use Permit; is there an impact on the adjacent property owners? Is there a negative impact on the adjacent property owners? Yes, I believe there is absolutely.
Mr. Meyer: What would that be?
Mr. Galster: It is an aesthetic intrusion on a lot of residential properties.
Ms. McBride: Mr.Galster, I think the specific wording that you were looking for is that it minimizes adverse visual effects of communication towers and support structures through proper sitting, design and screening; I think that is the Section 153.495(A)(2) you were referencing.
Chairman Butrum: Mr. Breidenstein, I have a question regarding the Communications Act, could you give us any clarity looking at the ovals, where would they suddenly say that satisfies the Act and this does not?
Mr. Breidenstein: Let me answer that in two different ways; you really have to start as much with the zoning map as you do with the coverage map because they cant go onto the property where the zoning doesnt allow it at all. There is only one property in all of Springdale, Forest Park and Fairfield in this broad area that arguably allows or does allow cell tower and that is this Church property and that happens to be zoned Public Facilities and it is surrounded by residential districts. They are really kind of hemmed in by the zoning code of those three communities. That is where we are, and the need for a tower corresponds with the zoning. The coverage maps push you into an area where they have to look, the site acquisition person has to not only consider where the coverage is needed but where it can be allowed by zoning.
Chairman Butrum: If the FCC came and looked at the existing coverage and they were told that there was one location that could provide additional coverage, would they look at existing coverage and say it fails our test of coverage?
Mr. Breidenstein: The FCC really doesnt judge the strength of coverage for the user; that is up to the user to decide on their own at this local level and if it fails at this local level it ultimately becomes an issue for State Court, more likely Federal Court under the Telecommunications Act. That is the point that I am glad you brought up because I was going to stand up and scream and yell about it anyway; the Telecom Act doesnt say on its four corners that Verison or Cricket or anybody is entitled to coverage in your basement with all the doors closed. That judgment is left up to the providers and it is also left up to the communities and how they draft their zoning code. There is a real balance of interest embodied within the Telecom Act: Recognize National goal and need of having a strong, vibrant, reliable telecommunication system, as well as the interest of local authorities to regulate land use. That is a real delicate balance and the balance on the local end has to be embodied within your zoning code and your zoning code doesnt say You can only have a conditional use tower if you have white areas where there is no coverage or light-green areas where there is on-street coverage. It does say, and I will quote That cellular or wireless communications company shall be required to demonstrate using the latest technological evidence that the antenna or tower must be placed where it is proposed in order to satisfy its necessary function in the companys grid system. So, what you have heard and the substantial evidence in the record today from Cricket is that it has a necessary need for coverage, no coverage, on-street coverage, and higher grades of coverage in this area. And as it turns out this is the only property in the three cities that surround this area that would allow a tower to be built, so I think that a strong argument could be made based upon the code that I just read, the coverage maps that you viewed as substantial evidence that denying a tower here for Cricket and for quite frankly two, three, four other providers would be an effective prohibition of coverage for those areas in the Telecommunications Act.
Chairman Butrum: We are not just being asked whether or not to put a tower there, we are being asked for 149 and it would allow four additional co-locators on the tower. Or we could do 125 and we could live with that and have 2 additional co-locating providers. It is pretty clear that everyone wants to minimize as much as possible the aesthetic impact on the residents. Three of the four directions are well within the 750 setback requirements; if we were to approve 110 tower, would we meet the Acts that could supersede any decision made by this Commission? Would they look at the existing coverage and say that is purely inadequate, as is? Would 99 be too restrictive? We are trying not to overbuild.
Mr. Breidenstein: Being the Chair of the Planning Commission next door, Im always on the wrong side of the battle, whichever decision I make Im always wrong. But you have the evidence in here; I think that absolutely supports the need for this tower at the height it has been requested, and at a lower height there has been plenty of evidence that would support 125 and they even support by your Staff report as well. What I heard most recently from Mr. Galster is some aesthetic concerns, We just dont think it will look nice there, to paraphrase you. That is all well and good but that is not enough; there is really no evidence in the record that would support any negative impacts of the aesthetics. We have one email from one person who didnt show up at the first meeting for some different reason. What I am getting at is actual testimony of persons who are affected by, arguably may be affected by this tower and the point I was trying to make is that this person chose not to appear at this meeting or to send another email. It is sort of guess work that people think that there is an aesthetic concern over this and I point specifically, and the reason I asked Ms. McBride where that consideration came from, is strictly from the intense Section of your Telecom provision of your Zoning Code; there is nothing in the meat and potatoes of your Zoning Code the actual regulations that address the aesthetic concerns. Ill submit for argument sake that the photographs show that the aesthetic impacts would be mimimized especially from the residential areas; you are going to see it from the interstate that is the primary area of coverage. Taken from the four streets that you asked them to take pictures from theres minimal impact especially at the 125. I think it is pretty thin basis to deny this application on that insubstantial evidence that is in the record.
Chairman Butrum: It seems like we have a 750 setback for some reason; I cant imagine what else it would be.
Mr. Breidenstein: Well, that is all guess work, as well because your Council Members arent here to testify what they were thinking back in 2000.
Mr. Galster: A couple of them are.
Mr. Breidenstein: By way of arguing, once again, Mr. Chairman that 750 is really quite onerous, I would argue quite confiscatory, if you think about it if you are like in a situation we are involved in here in a nonresidential property surrounded by residentially zoned properties and you have to maintain 750 separation between the tower and residentially zoned properties and if you draw a circle 750 that is quite a bit of real estate; I think if my calculations are correct it is 40 acres plus and I think the Church is at 22 acres, I argue that it would be confiscatory, may also run afoul of the Telecom Act in that it may, if a variance is not granted be in fact a prohibition of coverage in this area.
Chairman Butrum: We are talking well less than 750; that is out setback requirements but we are talking 387, 455 and 668, even if you make the argument that our current restrictions might be too restrictive we are roughly half that on the south side and the majority of that is still on the north side and then we are getting closer to the setback restrictions on the east.
I just dont know that we can trust these maps, they dont make sense; it doesnt make sense that coverage goes away. We are saying lets look at the evidence that has been presented by Cricket as evidence that there is a need and we are seeing things that dont make sense.
Mr. Breidenstein: I am not technical either, Mr. Chairman. I know that these maps were fluid; from day to day they are fluid when youre modifying their system to maximize coverage.
Mr. Meyer: Mr. Ruez stated that it is not just the matter of him generating a map, he cant generate all the maps at the same time; when he generated this current coverage map he generated it on a different day and tweaked the parameter here or there that showed a different coverage level than it does on the other maps. I would argue that if you take this map and look at the coverage on all the other maps where we are comparing the sites that we are proposing to the other sites that surround the area that are potential co-location areas, take this one map out and the one that has the red dots on it those are different; the rest of them are fluid and continuous.
Mr. Butrum: So, what you are telling me is dont trust these two maps, but trust these maps.
Mr. Meyer: What I am saying is there is a difference in this map than there is in the other map.
Mr. Butrum: So we should assume that the maps that show the coverage at 149 and 125 are accurate despite them showing that coverage suddenly goes away or all-but goes away in areas as a result of the addition of this tower.
Mr. Meyer: I think you could look at it that way or you could look at it, if you compare those to one another, you can see the impact of the areas of how they run to one another. We can come back to you at another time and show you more fluid maps. I would agree, at least in the north part, it shows a little more white area on the north end of the area of concern. We apologize for the inconvenience and understand your position. Whatever cell phone carrier you have there is adjustments happening all the time because the power grid in this area goes up and down.
Chairman Butrum: I dont doubt that these maps are probably close, they clearly vary. What do we have to fulfill before we are going to loose a case in court. Which area do they say there is just too much white there; is there a percentage? And we did have other residents attend; we had the Council Member from that district attend, who had spoken with multiple residents, and did speak at the last meeting. Clearly residents are concerned; if they saw 125 tower would they be less concerned? My hunch is yes but that is guess work. We are not here to deny coverage; but where are we complying with what is truly necessary and balancing the need for providing better coverage for our own residents.
Mr. Meyer: We cant have a tower at any other location, with or without variances; we would have to rezone a section of homes somewhere that is 40 acres around to just have a Conditional Use without a variance.
Mr. Hawkins: With what the applicant has indicated regarding this current coverage map, I am having issues in terms of its accuracy; it is a big problem for me.
Mr. Vanover: I would echo, you are asking us to make decisions off of information that is presented and the accuracy becomes vital.
Mr. Meyer: In Fairfield, where Mercy is and Cincinnati Financial and Cincinnati Mills, those areas are zoned business uses, but they are not business uses that allow towers; because of the zoning ordinance in Forest Park, Fairfield and Springdale that is all area that is prohibited by zoning. I am kind of glad that our RF maps are different because there is fluidity in our coverage and any carriers coverage; it does vary by a little bit here or there.
Chairman Butrum: These maps were generated by software simulations, why would the simulation vary?
Mr. Meyer: There was an error on Julio Ruezs part.
Mr. Ruez: It was not generated on the same day.
Chairman Butrum: I am personally comfortable with the maps; we are in the ballpark, I cant speak for other Commission Members. We continue to say that there is a need yet I dont think anybody still knows what that need is.
Mr. Meyer: The need is for a lack of adequate and reliable service inside this yellow area of concern.
Chairman Butrum: We never eliminate it, even at 149.
Mr. Meyer: That is correct.
Chairman Butrum: Clearly we are not trying to create an all blue area. Obviously the white doesnt have to completely go away.
Mr. Meyer: The indoor coverage is what customers want and demand, everybody wants it to work in their house. They dont want to have to rely on a landline provider, if they dont have to.
Chairman Butrum: When is it probable that the FCC could come in and say too bad? It doesnt sound like there is a set definition for that. I personally think that 125 is the right balance. I think being able to co-locate T-Mobile and still another carrier makes sense; and I do want to minimize the number of towers that we have.
Mr. Galster: I need to hear from the applicant what he considers to be acceptable at the lowest possible height.
Mr. Meyer: From Crickets coverage standpoint, at 99 is the minimum that they can go, they start to see issues down away from the site that they know they are going to have to address in the future; at 110 it shows up a little bit; at 125 is really the lowest that they want to go because they feel they can adequately and reliably provide the service to as many customers as they can and not to have potential future issues that have to be addressed by a new site or whatever down the road; and 149 would be great.
Mr. Galster: You, as the pole builder could you not build a pole that is expandable from 99 to 110 if we have a second carrier that wants to go on that tower?
Mr. Meyer: Yes.
Mr. Galster: So we could design it for even 129, if we wanted to and make it only 99 to start with and add as we need to add, if in fact you come in with new leases?
A new sequence of maps needs to be generated so that we can have some consistency that actually shows that there is not a drop when you add a new tower. New maps will have to be generated that have the same parameters so that we can evaluate like information; but I would like to know if that is that the norm, worse case scenario and best case scenario. I need to know that the parameters were set up when these maps were set up were optimized. I need to know how many residential areas are in the white area or a green area; can you tell me how many customers are in your white area or your green area? I need an aerial map blown up as big as you can to match whatever map that you are going to regenerate so that I can look at it.
Mr. Meyer: So put the area of concern on a blown up aerial.
Mr. Okum: A Conditional Use hearing is very similar to a variance request; the setback issue is a Board of Zoning Appeals issue. In many areas of Springdale we allow cell towers pretty much everywhere except in a residential district.
(At this time, for clarification Mr. Okum read Section 153.708 (B) of the code under the standard section.)
At this point, based upon the information that we received and the discussions that have occurred are we prepared to act on this, this evening? Are we really ready to vote tonight and if we arent it would be better carried forward to the next meeting?
Mr. Galster: I am still concerned about the basic map. I believe that needs to be cleared up.
Mr. Bauer: I believe there are inconsistencies in that evidence presented.
Ms. Ghantous: I think we are in the ballpark; I think I could vote tonight.
Chairman Butrum: I think I could vote tonight.
Mr. Vanover: I still have concerns and questions.
Mr. Hawkins: I could vote tonight based upon the information that has been provided; it might behoove the applicant to clear up some of the inconsistencies in the maps and the evidence that has been presented.
Mr. Okum: I would be voting in opposition to it based upon the information that was provided. You need five votes for a yes. I would recommend maybe that you carry it forward to what Mr. Galster is suggesting and come back next month; doesnt preclude you from going to Board of Zoning Appeals on the zoning variance.
Ms. McBride: The variance could be acted upon but the tower could not be constructed without the Conditional Use.
Mr. Okum: As the Chairman of the Board of Zoning Appeals I would encourage them not to vote favorably because there is a Conditional Use variance on the table.
I did want to mention to Mr. Breidenstein in regards to representative government, I know residents did not come forward except for the last meeting; Mr. Butrum referenced those, we have two Council representatives on this Commission and that is representative government and there are appointments to this Commission by Council and the Mayor so we are representatives and residents of Springdale. In regards to our opinion and in regards to people coming forward, it doesnt necessarily need a mob of people in the audience to dictate whether an ideal is valid or a good consideration.
I mentioned earlier that one of the most negative impacts of that tower is how it sits against that tree line and that is a residential zoning district; Glenmary Missioners is our highest end residential properties that we have left in Springdale and that tower is going to be sitting right on the edge of it, that will be the most noticeable and it will in my mind impact it. Why another location on that site wasnt considered, I dont know but I cant speak to that; but you chose to nestle it up into the tree line and sometimes that doesnt always work so good. All the residential zoning, high-end residential zoning that we have left in Springdale, the estate zoning is right there.
If I were buying, building a million dollar house sitting into that knoll of forest, if there is one tower or two towers and that is what you see going into it; that is going to make an impact dont you think?
Mr. Meyer: No. I dont. I dont have a million dollar house but I can see a tower from my house that has a light on it. I can come to you with examples all around this country, around Cincinnati where there are million dollar houses closer than that built before and after a tower.
Mr. Okum: Then present that when you come back to the next meeting.
I think the only other comment I had, Mr. Galster that was a good suggestion you had that all the parameters are identical; I think that baseline should be optimized for existing and it should be optimized all the way through so that there is no variable. Is there a way of verifying those reports? Is there a service or another engineering firm that can give it a second pair of eyes?
Mr. Galster: Could you print out the parameters that are entered for any particular thing?
Chairman Butrum: Im assuming that things like height of trees, density of trees go into those calculations, is that accurate?
Mr. Meyer: Yes.
Mr. Galster: Are these maps based on tree height of 100 or the maps based on a tree height as they exist on the site?
Mr. Ruez: We dont change anything, everything is set up.
Mr. Galster: Is the standard program set to account for a tree height or a canopy of 100?
Mr. Ruez: I can check about that.
Mr. Galster: Because one of the reasons that you cant go down below the 99 is because of the tree height.
Mr. Ruez: Yes.
Mr. Meyer: From a marketability perspective carriers are not going to go below 99 at this location, because of the woods in this area because they are going to have interference issues.
Mr. Ruez: It is very important that you have direct line of sight; no obstructions. When the tree has leaves it makes some losses to the signal.
Mr. Galster: What is the distance between the actual tree height and your actual antennas that you need to maintain in this area all the time? If you need to be 25 above the tree height, that is what I want to know.
Mr. Ruez: If you go higher it is better.
Mr. Meyer: How much higher do you need to be than those trees before you dont have interference problems caused by that canopy of trees below?
Mr. Ruez: You can be like 30 or 40 from the tree line.
Mr. Galster: Is that for todays coverage or is that for anticipated use over the long period of time? Can we lower the tower and make it expandable; we could even expand based on the height of the trees.
Mr. Meyer: The problem with that is you have some contracts that are happening, so lets pretend Cricket and T-Mobile are already on the tower and they are at 40 above the trees; they are going to have a deal with American Tower who owns the site, they are going to have a 25 or 30 year agreement. They have rented that height and I think it is unfair to ask them when the trees grow to re-contract.
Mr. Galster: I dont know if the tree canopy height comes into the equation at all; that is my original question.
Mr. Meyer: At 100 they know that they can stay above what that canopy will be.
Mr. Vanover: It is one thing to engineer the flexibility of the structure and we have all seen the number of lines that are running up a cell tower; if they build this first level at 90 they are not going to throw extra slack cable in that; if you add 10 to it for another provider those antennas are going to have to be raised, new cables are going to have to be pulled. Yes the tower can be expandable, but the practicality of that is another thing.
Mr. Meyer: Normally you dont build a tower up, you start at the top and work your way down.
Chairman Butrum: Would you like to continue this or would you like for us to take a vote tonight?
Mr. Meyer: Based on what I hear, I want to continue it but it will hurt our timeline. Until Mr. Okum brought up the possibility of the City hiring a third party reviewer of some sort, I was going to ask you to do a special meeting but there is no way we can create these maps that you want and then have them reviewed by a third party and have a meeting within the next couple of weeks.
Mr. Okum: Unless Ms. McBride has somebody in her firm that does this?
Ms. McBride: We do not have anyone in our firm.
Mr. Okum: I really personally think that it needs that, just for the residents representation.
Chairman Butrum: I dont want to waste the applicants time, nor our own; I guess if they satisfy the need request and at least investigate the idea of potentially the modular tower that builds out, will there be any flat out No votes? If we have a sufficient number of people say there is no way that I can vote for even a 99 tower on day one, then we are wasting everyones time.
Mr. Galster: Mr. Chairman, I am much more comfortable at 99 than I am at 149 or 125. I think the impact on the surrounding residential area is greatly affected by the height of the tower.
Chairman Butrum: If they prove the need and they prove the coverage?
Mr. Galster: It will allow me to make that decision.
Chairman Butrum: So you want to request a continuance till the next meeting?
Mr. Meyer: I do. I was hoping to hear a little more about what I could do to satisfy concerns.
Chairman Butrum: I dont think it is an eyesore at 125; once we back off at 750, it is not that I dont care what it looks like. I have yet to see why 125 doesnt work aesthetically; I have yet to see why on day one we wouldnt want to allow three co-locating providers on that tower. I think our residents are benefiting from this. If we voted right now at 125 you would have my vote.
Mr. Hawkins: If this meeting is continued on until the next meeting, will we continue the public hearing.
Chairman Butrum: Yes. I think we should.
Mr. Breidenstein: I think I have sense of what each one of you think about this application, at least in broad terms, you are very precise in your position right now that you would approve 125 or lower, but nothing above that. Might I suggest a two-stage approach to wrapping things up tonight; if somebody were to make a motion at 125, which I think the applicant would approve or accept as reasonable. Let it go up or down, if it fails then the second step would be that we could come back before this Commission under deferral to answer the concerns that were raised throughout this evening.
Chairman Butrum: I would be open to that. What I am hearing from the majority that they dont feel comfortable that the maps presented are accurate enough to understand the need; as well as the particular parameters that went into the simulation software to define those areas such that we could put them in front of a third party, we would find a third party expert who would say that those parameters are reasonable, those parameters are absolute worse case, best case, or whatever it may be.
I think the Commission is saying they need something they can verify; the maps varied from map to map in terms of coverage, there wasnt consistency; they dont understand all the parameters involved in that evidence. We would like to see a map that has consistency that has the same parameters plugged in, but also understand what those parameters are that are plugged in. Who is prepared to vote tonight?
Mr. Galster: No, I am not prepared to vote.
Mr. Bauer: Same.
Ms. Ghantous: I could vote tonight
Chairman Butrum: I could vote.
Mr. Okum: No. I dont think it is fair to the applicant.
Mr. Hawkins: The applicant has conceded that a critical piece of this, that is considered evidence is flawed, so that would be a problem.
Mr. Vanover: Same.
Ms. McBride: You need to take a vote to extend that time period for review of this application. Our code requires that this Commission would act within 35 days of receipt after the complete application from the Building Official and you received that application on August 7th; and that extension can be for a period or not to exceed 60 days.
Mr. Okum: That is my motion.
Mr. Vanover: Seconded the motion and with a unanimous aye vote from the Planning Commission members, the extension was granted.
Mr. Okum: It brings a commercial appearance to a residential area and that is the reason you dont have gas stations in residential neighborhoods; it is not a gas station but it does give it a commercial tone; no different than the expressway overhead beacon lights that run down the center of the expressway, if you could mount them on the expressway I dont care because we already have overhead lights on it, but this is the best location for you. I still feel that nestled into the trees is not the best location for you. The lower it gets the better it is going to be.
Mr. Meyer: We feel it is in the best location visually because it is in the woods because there is no better way to hide a tower than to stick it in where your tallest trees are. It is at the lowest point on the property and it is as close as we can get within 5 of the setback from the south property line of the interstate because we felt that it pulls it away from any potential residential building and existing residential development to the north. There is a sound wall built on the south-side of the highway that might help block the visual from the back yards of some of those homes on the south side.
Mr. Galster: There is something to be said about having the expandability of adding a second tower, which according to the letter that is presented it seems like it is a descent possibility; whether or not there is a third possibility, I dont know that exist out there.
Mr. Meyer: I dont know if you are going to have someone from a third party review it or not, but if you are we are going to need to information for them so we can get back here in a month.
Ms. McBride: I would say as soon as you can get the information together, you can email it to us that would be very helpful.
(At this time Mr. Meyer indicated that he would like to postpone the Board of Zoning Appeals variance request presentation for the September 15, 2009 meeting; and indicated he would like to continue the Planning Commission hearing at the October 2009 meeting.)
Mr. Okum: I move that this session of the Planning Commission regarding the cellular tower for Cricket be continued in progress to October 13th, 2009.
Mr. Vanover seconded the motion and all Planning Commission members voted aye; the request to continue was granted.
VI. NEW BUSINESS
No New Business presented at this meeting.
(No other discussion presented.)
VIII. CHAIRMANS REPORT
Chairman Butrum: I approved a sign for Halloween Express located at 11711 Princeton Pike Space 255.
Mr. Vanover moved to adjourn, Mr. Steve Galster seconded the motion and the
Planning Commission adjourned at 11:04 p.m.
Chairman Tony Butrum
Lawrence Hawkins III, Secretary