North tower location
South tower location
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South tower location |
Application 10-034
Staff report addendum
The applicant is seeking to erect two windmill towers for the placement of low-power antennas for the purpose of establishing wireless internet and VOIP (Voice Over Internet Protocol) system to reach nearly all residences within Boundary County.
The applicant currently has approval to erect one tower within the City of Bonners Ferry and has built one on Katka, which is less than 40-feet in height and therefore exempt from county wireless communication facilities regulations. The applicant, on initial advice from staff, also erected a 110-foot windmill tower on a 150.57-acre parcel located north of Bonners Ferry off of Ginger Lane.
At the time of initial contact by telephone, the applicant did inquire as to county regulations regarding windmills, I asked him if he would be generating power for sale and he said no. He did state that there would be antennas on them, but I was not aware that these would be for the purpose of generating a wireless communication signal and did not think to ask the question. As the tower was being installed, I received a complaint and was informed that these towers were for the purpose of providing a signal for wireless internet, made contact with the applicant and he agreed to halt development pending a public hearing for a conditional use permit.
In order to complete the antenna system, which the applicant said would provide high-speed wireless internet, internet telephone and internet video phone services to 90-percent of residents in Boundary County, a fourth tower, 120-feet in height, was required in south Boundary County on a 160-acre parcel located off Mica Road in Highland Flats. In order to expedite the applications, I advised the applicant to include both towers in the conditional use application.
If approved, the towers would be situated on high ground (estimated elevations 2,700 for the north tower and 2,600 for the south tower) in remote and sparsely populated areas. Access for maintenance would generate approximately four trips per year at each site. The towers would require no utilities as they would be self-contained units, with the majority of the power required to generate the signal to be provided by wind. Batteries would provide a two-week buffer, and generators would provide backup for periods when there were prolonged periods of no wind. The towers are situated so that, should one fail, the other three would provide backup coverage to the area so that clients subscribing to the system would experience minimal to no downtime.
According to the applicant, these four towers would not only reach 90-percent of the existing population in Boundary County, but would lay the foundation for systems that would reach more remote users through the placement of additional small towers (below the 40-foot county threshold) so as to provide a line-of-site signal. The applicant states that his goal is to provide wireless internet and VOIP services to everyone in Boundary County who wishes such services.
The Federal Communications Commission regulates these types of communications facilities, and the applicant would be required to follow FCC rules to remain in operation. For this type application, the maximum effective radiated power (ERP) allowed is four watts with a power ration in decibels (dBm) of 36, which is far below the maximum power radiation allowances for applications such as cellular telephone service. According to the applicant, the power broadcast for the signal would take less power than that required to illuminate a typical child's nightlight.
Boundary County Planning and Zoning
Commission
FINDINGS AND DECISION
Application 10-034, E.L. Automation
1 MOTION: Made by member Paul Shelton
to approve application 10-034 with the condition that prior to functional
operation, the applicant shall provide documentation showing that the provisions
of Chapter 5, Section 8, Boundary County Zoning and Subdivision Ordinance, have
been met. Motion seconded by member Marciavee Cossette and carried
unanimously.
2 OVERVIEW: The applicant is seeking to erect two
windmill powered wireless communications towers in excess of 40-feet in height
on parcels RP63N01E292410A, a 110-foot tower on land owned by Marjorie
Pinkerton, and RP61N01W350610A, a 120-foot tower owned by Rosemary Hopkins. Both
property owners signed applications giving their approval for this use of their
land.
3 PURPOSE: The purpose of these towers is to form a system
of four towers capable of broadcasting low frequency and low power signals to
provide high speed wireless internet services to the citizens of Boundary
County. In addition to the two towers proposed, the applicant has already
constructed a 40-foot tower on property his family owns on Katka Peak, and has
already received approval from the City of Bonners Ferry for a site within city
limits. It is the applicant's testimony that these four towers will be capable
of providing wireless internet service to 90-percent of county residents, and
that additional towers, not to exceed 40-feet in height unless approved by
subsequent application for a conditional use permit, may be required to reach
geographically remote areas to provide service to those residents not otherwise
able to receive wireless internet coverage.
4 SPECIFICS: Pursuant
to materials in the application and presented in testimony by the applicant, the
two towers are each to be:
4.1 Erected at the heights established at
paragraph two, above.
4.2 To be powered by a nine-foot SWEA 1kW, 40 V
grid-tie wind turbine specifically designed to be quiet enough for urban
residential use.
4.3 That below each windmill will be placed four
broadcast antennas operating at or below the frequency of 36 dBm at four Watts,
the maximum ERP allowed by the FCC for this type use in the United
States.
4.4 That each site will contain a battery storage system
capable of powering that particular site, once fully charged, for a period of
two weeks.
4.6 That each site will contain a propane-powered Kohler
8.5RES residential generator in a sound-enclosed cabinet designed to keep noise
levels at or below 65 dB at seven meters, and that, lacking wind or battery
backup, these generators could be expected to engage approximately six times per
year.
4.7 That each site will be enclosed by a gated and locked fence
sufficient to preclude trespass or intrusion.
4.8 That estimated
vehicular traffic to the sites for maintenance and upkeep, once erected and in
operation, is four trips per year.
4.9 That access to each site is by
private road, subject to the civil agreements as to conditions and restrictions
as supported by deeds on file with the Clerk of Court of Boundary County,
Idaho.
5 ABROGATED FACTORS: Based on testimony received at public
hearing, the Boundary County Planning and Zoning Commission is aware that the
applicant, prior to formal application and based on information provided
erroneously by zoning administrator Mike Weland, had constructed the tower
proposed on Parcel RP63N01E292410A and had started construction of the tower
proposed on Parcel RP61N01W350610A. The commission is aware that, as a
result of Weland's assertion that no county permit was required to erect a
windmill not designed for commercial power generation and later discovery that
the towers were in fact designed to generate a wireless communications signal,
that the application for at least the tower already in existence should have, by
letter of the ordinance, been processed as a variance for waiver of violation,
which establishes that:
5.1 In the event that a building, structure or
use is erected or established in good faith and with intent to comply with the
provisions of this ordinance, and is later determined not to comply, the
planning and zoning commission may grant a variance for waiver of violation. In
granting a variance for waiver of violation, the commission may:
5.1.1
Grant a variance from required setback, lot size or other such specific
provision as may eliminate the violation.
5.1.2 Impose conditions or
restrictions upon the variance as will assure that further violations do not
occur or to prevent or abate any nuisance which may be imposed.
5.2 The
Planning and Zoning Commission of Boundary County concedes that administrative
errors were made from the outset, but concludes that:
5.2.1 The
administrative errors were not intentional nor designed to offer any one
applicant undue latitude, but would have and had been afforded to other
applicants proposing similar land uses;
5.2.2 That the administrator,
in recommending to the applicant that he apply for a conditional use permit
rather than a variance to allow continuation of the improper use, as well as the
construction of an additional uncompleted tower, did not subject the applicant
to undue additional administrative requirement, as the Planning and Zoning
Commission has authority to grant or deny either a variance or a conditional use
permit by the same public hearing process, as well as to establish like terms,
conditions and restrictions;
5.2.3 That had the administrator properly
advise the applicant of ordinance requirements at the outset, the proper venue
to establish such towers in the agriculture/forestry zone district would have
been subject to Chapter 12, Boundary County Zoning and Subdivision Ordinance,
pursuant to Chapter 7, Section 1D12, which establishes that “Public service
facilities and wireless communications facilities” are uses conditionally
allowed within that zone district.
5.2.4 That despite testimony that
not all property owners within 300-feet of the boundaries upon which the towers
were to be placed acknowledged receipt of notice, the administrator was able to
adequately show that first class mailings, as required, had been entrusted to
the U.S. Postal Service;
5.2.5 That despite the administrative errors and
concerns raised, this commission took into account the testimony it received at
public hearing concerning these lapses and omissions, and was able to reach a
unanimous decision in granting this application based solely on its merits, and
would have ruled the same had the towers not been erected prior to
application.
6. PUBLIC HEARING: The Boundary County Planning and Zoning
Commission held public hearing on this application, following proper public
notification as established at Chapter 16, Boundary County Zoning and
Subdivision Ordinance. Prior to hearing, one letter had been received in
opposition to the proposal based on concern for public health. At hearing, six
people spoke in favor of the application, as reflected in the minutes; six
people spoke as being uncommitted; and two people spoke opposed. Major comments
in favor of the proposal included;
6.1 That the property upon which the
towers were proposed to occupy were remote, rocky and unsuited for other uses
allowed within the Agriculture/Forestry Zone District, affording the highest and
best use of that land.
6.2 That the proposed use brought by this
application made available community-wide access to an essential service not
currently provided or available within all areas of Boundary
County.
6.3 That the proposed use was by a life-long local resident and
family who had earned a successful reputation for harnessing technology and
providing local jobs rather than a corporation that might outsource such service
and employment; that no public monies were involved in either the maintenance of
roads or the provision of services.
7. Major concerns expressed
included:
7.1 That access to the site was by private road upon which
property owners had not granted easement.
7.2 That electro-magnetic
radiation might be emanated which could cause harm to individuals exposed to
them.
8. FINDINGS: After due deliberation, the Boundary County Planning and
Zoning Commission finds the following:
8.1 That the use proposed offers
a service that is essential to the citizens of Boundary County.
8.2 That
the site plan and other documentation included with the application provide
sufficient detail to provide a clear description of the nature of the
conditional use as required at Chapter 12, Section 4C1.
8.3 That there
is sufficient land area to accommodate the proposed conditional use and that any
structures are so arranged as to minimize adverse effects on surrounding
properties.
8.4 That the proposed conditional use will not have
substantial adverse effect on adjacent properties.
8.5 That adequate
public services, including water, sewage disposal, roads, fire protection, etc.,
exist or will be built to accommodate the proposed use.
8.6 That the use
proposed use affords minimal threat to the public.
8.7 That it is beyond
the scope of this commission to impose or restrict access rights across private
property as established by civil agreements and as allowed or afforded by the
individual property owners, and that;
8.8 The applicant made public
commitment to learn and abide by such agreements or make alternate arrangements
for access of his own volition;
8.9 That the provisions of Chapter 12,
Section 1b; state that “Once a conditional use permit is approved, the terms and
limitations of the permit shall become the controlling plan for the use of the
property and shall not be changed or amended except by application for a new
conditional use permit. Any development or use in violation of the terms and
conditions of the conditional use permit shall be deemed a violation of this
ordinance.” Based on this, the facts of the application also establishes limits
and restrictions in addition to those additional limits imposed by this
commission, as enunciated in paragraph 4, above, which are subject to oversight
and enforcement by this body.
8. Based on the above, the Boundary
County Planning and Zoning Commission, with restrictions established, does
hereby approve, by unanimous vote, application 10-034.
/s/
8/2/2010
Rod
Barcklay Date
Chairman
Staff Report and Procedural Recommendations
Boundary County
Commissioners
FINDINGS AND DECISION
Appeal of Final Decision, Application
10-034, E.L. Automation Inc.
1. The applicant, E.L. Automation, sought a conditional use permit to establish two windmill-powered wireless communications towers in excess of 40-feet in height for the sole purpose of providing wireless internet service to the majority of Boundary County, one on parcel RP63N01E292410A, a 150.57-acre parcel owned by Marjorie Pinkerton located in a remote area accessed primarily by Ginger Lane, a private roadway, the other on parcel RP61N01W350610A, a 160-acre parcel accessed by Mica Road, a county-maintained public road in the Round Mountain area south of Naples. These towers are part of a system of four wireless internet towers designed to make wireless internet service available to an estimated 95-percent of Boundary County residents, one located on Katka Mountain and, being less than 40-feet in height, exempt from the requirements of Chapter 5, Section 8, Boundary County Zoning and Subdivision Ordinance, the other located within the City of Bonners Ferry and thus not within the jurisdiction of county planning.
2. The Boundary County Planning and Zoning Commission held public hearing on application 10-034 on July 15 at the time specified in public notice, and did vote unanimously to approve the conditional use permit, establishing the condition that prior to the sites being made operational, the applicant shall provide the administrator documentation that the provisions of Chapter 5, Section 8, Boundary County Zoning and Subdivision Ordinance, have been met.
3. The final decision of the planning and zoning commission was signed by chair Rod Barcklay August 2, 2010, and appeal was filed with the planning office August 19 by Daryl and Sandra Mong, 224 Bane Lane, meeting the deadline for this type appeal pursuant to Chapter 11, Section 3B, Boundary County Zoning and Subdivision Ordinance.
4. The appeal was accompanied by a petition signed by them and 19 other interested parties residing in Boundary County. Each signator has standing to appeal pursuant to Chapter 11, Section 3A, Boundary County Zoning Administrator.
5. Pursuant to Chapter 11, Section 3D, the requisite number of valid signatures were provided so as to compel a public hearing before the Board of County Commissioners prior to the rendering of a final decision.
6. A separate appeal was filed August 20 by Ingrid Pavia, 17 Ginger Lane. This appeal, too, was filed in a timely manner pursuant to Chapter 11, Section 3B, and the appellant also has standing to appeal.
7. Boundary County Commissioners held public hearing September 27 at the time specified in an expanded public notification procedure in which notice of public hearing were mailed not only to property owners within 300 feet of the subject parcels as required by Idaho Code, but to all residents owning property accessed by both Ginger Lane and Mica Road. Notice included the notices of appeal, the planning and zoning commission findings and the staff report and procedural recommendation of appeal. In addition, due to the remote location of the two subject parcels, signs were posted at the foot of both accesses rather than on the subject parcels.
8. In attendance at the public appeal hearing for the county were commission chair Ron Smith, commissioner Walt Kirby, zoning administrator Mike Weland, deputy clerk Michelle Rohrwasser and county civil attorney Louis Marshall. Absent was commissioner Dan Dinning.
9. Boundary County Commissioners allowed both appellants, Daryl Mong and Ingrid Pavia, to make opening statements before opening the hearing to public comment. Mr. Mong's primary concerns were alleged incompetence by the administrator and concerns over access via Ginger Lane, a private road. Mrs. Pavia's primary concern were the potential adverse health affects posed by wireless communications facilities.
10. In giving public testimony, Jerry Pavia, Jerry Higgs, Jacob Epstein, Chris Meikle and Jevon Byler spoke in favor of granting the appeal and Commissioner Smith read a letter into the record written and submitted by James Byler. No one spoke uncommitted. Speaking in opposition to granting the appeal were O.E. Hopkins, LeAlan Pinkerton, Shirley Anderson, Rosemary Hopkins, Larry Pinkerton, Amber Reed, Marjorie Pinkerton, Nick Johnson, Jesse McGee, Mike Sloan, Linda Lederhos, Valerie Suprenant, Stephanie Lederhos, Steve Shelman and conditional use applicant Eric Lederhos gave testimony and Commissioner Smith read a letter into the record submitted by Max and Sharon Schnuerle.
11. Mrs. Pavia made closing statement; due to a prior committment, Mr. Mong left the hearing early. Minutes of the hearing are attached to reflect the concerns raised.
12. After closing public hearing, commissioner Walt Kirby made motion to deny the appeals filed by Daryl Mong and Ingrid Pavia and to uphold the findings of the Planning and Zoning Commission. Chairman Smith stepped down to vote and the motion carried unanimously.
13. In addition to the findings of the Planning and Zoning Commission, the Board of County Commissioners find the following:
13.1. Because Ginger Lane is a private road, neither the Planning and Zoning Commission or the Board of County Commissioners have the authority to either grant or deny access, and neither body has done so in approving this application. Based on testimony received, the applicant has been granted access via Ginger Lane by 30-year resident Jesse McGee while property owners, including Mr. Mong, contend that access is restricted by deed. The proper venue to render a binding decision on the matter of access rests not with county commissioners, but through civil action in a court of law.
13.2. While both the Boundary County Planning and Zoning Commission and the Board of County Commissioners are primarily concerned with the health and welfare of the citizens of Boundary County, neither body is qualified to assess the health risks posed by the placement or output of wireless communications facilities, but must rely on the expertise and experience of the Federal Communications Commission and the Telecommunications Industry Association/Electronic Industry Association to establish regulations and standards sufficient to protect the health of citizens exposed to electromagnetic radiation, to include radio waves. The Board of County Commissioners concur that the condition established by the Planning and Zoning that the applicant provide proof of compliance with the provisions established in Chapter 5, Section 8, prior to the towers being made operational, and which were acknowledged as required by the applicant during public testimony, will provide sufficient scientific assurance that the proposed towers will pose no significant health risks to the citizens of Boundary County. Concerns were also expressed that, once established, additional antennas or transmission devices could be located on the towers, however, by the terms of the conditional use permit, any expansion from the specifics established in the planning and zoning findings and decision would require further public hearings.
13.3. The Board of County Commissioners concur with the assessment provided in testimony by Boundary County Economic Development Specialist Mike Sloan, who cited the importance of the provision of wireless internet service to the economy of Boundary County. Pursuant to Section III, Boundary County Comprehensive Plan, the priority of Boundary County policy and planning decisions is the promotion of economic growth, and infrastructure improvements, including wireless internet service, are essential to the economic well-being of Boundary County. Boundary County is one of few remaining rural areas of the nation lacking such service, and we strongly concur with the initial finding of the Planning and Zoning Commission that the proposed use offers a service that is essential to the citizens of Boundary County.
/s/
Ron Smith,
Chairman
Absent
Dan Dinning, Commissioner
/s/
Walt Kirby,
Commissioner
October 25, 2010
Date
ATTEST:
/s/
Michelle
Rohrwasser
Deputy Clerk of Court