Board of Zoning Appeals

Nolensville Town Hall

February 12, 2009- 7:00 p.m.

Members present were: Chair Bob Haines, Tommy Dugger, Ken Norman and Brian Truman. Member Charles Lawson was absent.  Staff present was Attorney Robert Notestine, Building Official Michael Blanks and Judy Simerson.   Applicants present:  Philip F. Head, attorney with Waller Lansden Dortch & Davis, LLP, representing property owners:  Mark and Marianne Blankenship; Alex Wagner, Engineer with Verizon Wireless.  Eleven (11) citizens were present. 

Chair Haines called the meeting to order at 7:00 p.m. and led the Pledge of Allegiance.  

Approval of Minutes:

Commissioner Truman made a motion to approve the minutes from September 11, 2008 and Commission Norman seconded.  The minutes were unanimously approved.

Announcements:  Chair Haines asked that all cell phones be placed on vibrate and then went over the procedures of the meeting.  He also explained the function, powers and duties of the Board of Zoning Appeals.  New Business:  7375 Nolensville Road – Request for Permitted with Conditions for the Erection of a Wireless Communications Tower in Estate Residential Zoning District  Mr. Philip F. Head, attorney with Waller Lansden Dortch & Davis, LLP, stated he was present on behalf of Verizon Wireless Tennessee Partnership.  He presented a copy of the written submission detailing the applicant’s compliance with the special exceptions standards for the wireless telecommunications tower in the Town of Nolensville.  As drafted, the town’s ordinance currently only contemplates for telecommunication towers to be constructed in the commercial services zoning district.  State law, specifically, Tennessee Code Annotated Sec. 13-24-301 and 13-24-305)(3) work in concert to preclude local municipalities from limiting the placement of communications towers to specific zoning ordinances.  He stated that they respectfully request that the Town entertain their motion for this tower in the Estate Residential zoning district. The proposed property is owned by Mark D. and Marianne Blankenship, and it is at the address of 7377 Nolensville Road.  The property is located approximately one mile from here on the right towards the top of the hill.  The tower will be a 195’ monopole that will accommodate 3 additional carriers other than Verizon for a total of 4 carriers.  This is done in an effort to prevent tower proliferation and to prevent other carriers from coming before you to request new towers.  It will be located 500’ from Nolensville Road up the side of a hill   

Mr. Head stated he would discuss what he had submitted in writing concerning the applicants meeting the use permitted with conditions standards for communication towers.   Under Section 2.5.0, (A) and (B) of the zoning ordinance under, there is no other tower or other existing structure in Nolensville for Verizon to place its antenna upon that would serve the area that will be served by this tower.  There is a tower located two miles south of this location.  It is owned by American Tower that is a 165’ tower, and it is presently extremely over burdened with five carriers.  The only space available to Verizon is at the 110’ level, and that is simply not high enough with the tree cover and topography of the area to provide adequate coverage.  The location two miles south does not address the coverage needs that Verizon is trying to fulfill, which is the area surrounding the Town of Nolensville.  Regarding Section 2.5.0(C), the tower will not produce any interference with any type of electronic reception in residential areas surrounding the site.   Under Section 2.5.0(D), the tower will be constructed such that there is a 199’ fall radius surrounding the tower in which no structures or other occupied areas are present.  Under Section 2.5.0(E), the applicant has submitted a letter from a licensed Tennessee engineer certifying that, in the unlikely event of collapse, the proposed tower will fall within a 50’ radius from the base of the tower.  The applicant has provided the BZA with copies of the Land Lease Agreement and Memorandum of Land Lease Agreement whereby applicant leases a 100’x 100’leasehold parcel.  Under Section 2.5.0(F), states that maintenance vehicles will have ample room to maneuver within the bounds of the applicant’s access easement and leasehold parcel.  Under Section 2.5.0 (G), buildings erected in connection with the tower shall only be used for storage of necessary on site equipment.  No other buildings will be constructed on the applicant’s leasehold parcel.  The area will also be screened by a natural vegetation buffer.  Under Section 2.5.0(H), since this proposed tower is less than 200’, it is not required to be lit since warning lights are not required by state or federal laws.  Regarding Section 2.5.0 (I), applicant will construct the required buffer yard in connection with the tower.  Under Section (J) the above reference engineer’s letter certifies that the tower will meet the requirements of EIA Standard 222E-1991 utilizing a wind rating of 80 mph plus ice loading.  Subsection (K) required FFA regulations are actually not applicable to this tower.  The applicant does not have to notify the FFA since the communication tower is less than 200’ in height.  Documentation has been provided showing that no notification by the FAA is required.  Under Section 2.5.0 (L), Mr. Head stated in an effort to make the proposed tower site more aesthetically pleasing, the applicant, at the request of the Nolensville Planning Department, proposes to construct a tan or grey manufactured vinyl fence to surround the tower site instead of the screen link fence proposed by the ordinance.  Mr. Head stated that concluded the presentation of the applicant’s compliance with the town’s ordinances, and he stated he would be glad to answer any questions.    Chair Haines stated he assumed the proposed roadway would be built to town standards.  Mr. Head stated it would be certainly done to meet the standards.  Chief Haines stated the applicant would also need to meet all applicable storm water issues.  These conditions will be required when the proposed tower goes before the Planning Commission.  

Commissioner Truman asked how long has Verizon been looking for property in this area.  Mr. Head stated we found an initial site in the town last fall.  Due to the State Historic Preservation Office deeming that site being too close to sites of historical significance, that office requested that tower be located in another site.  This proposed site has been approved by the Historic Preservation Office.  Commissioner Truman asked why this particular area was chosen over other properties. Mr. Wagner stated this area was chosen to meet the coverage objectives and to comply with the state historical requirements.   He stated Verizon had a designer who annually decides which sites should be built for each of their markets.  This area popped up as a trouble area with dropped calls, etc.   Commissioner Dugger asked for clarification on the address, as to whether it was 7377 or 7375 Nolensville Road.   Mr. Head stated the 7377 may be the individual address for the tower location for “911” calls, and the 7375 is for the residence in front of the tower location.    In answer to a question about the construction of the tower, Mr. Wagner stated the way a tower is built; they are actually prefabricated structures that are built by tower companies.  He stated they had a letter from a licensed Tennessee engineer stating that it meets the standards.  A codes person will inspect the installation of the tower as well.  At 7:15 p.m. Chair Haines opened the public hearing for citizen comments.  Ms. Kali Cain stated she was the daughter of Tom Morris of 7383 Nolensville Road and was appearing on behalf.  She distributed a copy of his remarks and stated they had just a few requests.  She asked that the town not be hasty in approving the placement of this tower and stated her father was opposed.  She urged all the board members individually to take the time to do their own research for an alternative location. Research shows that the cell towers can cause potential adverse health effects for those living in close proximity to the towers. The town should look for an alternative non-residential site for the placement.  She urged the Board to listen to the handful of residents that will be affected by this cell tower. She also asked the Board to consider the precedence of control that this could possibly establish because this is an example of a big corporation coming into a small town and deciding where to place their stuff.  The tower will result in a decrease in property values, and it will be an eyesore and affect the health of residents.   Kelly Dever stated her family lived at 9865 Clovercroft and this tower will basically be in their backyard.  The town should create an ordinance to regulate cell towers because the town does not have one at the present time.  She stated she has spoken with the planning department at the City of Brentwood regarding the ordinance that the town has adopted, and she brought a copy of the 9-page document with her.  Brentwood makes it very hard for new towers to be erected.  She urged the Town of Nolensville to adopt these guidelines as well.  Another website showed where the towers can be camouflaged as pine trees or be used on stop lights.  There are other alternative instead of big ugly poles.  She suggested that this be delayed until the Board of Mayor and Aldermen can review.  Other locations should also be considered, and she asked the Verizon representative about the other areas they considered.  She stated they personally objected because it will lower their property values and she was concerned about the health issues for her child.  She stated studies have not been done on the effect of cell towers on children. It will also ruin their “great view” from their property of six acres.

 Chair Haines asked if there were any further comments from citizens, and there were none.  He thanked the citizens for their input.  Chair Haines stated this will also be considered by the Planning Commission and encouraged the citizens present to attend that meeting.  Counsel Notestine gave the time and date for the next Planning Commission meeting in March, and this item is scheduled to be heard at that meeting.   Chair Haines reminded the audience that the Board of Zoning Appeals does not have the power to limit, change or add ordinances for the town.  He stated he understood the concerns of the citizens but the Board of Zoning Appeals also does not have the luxury of “voting from the heart”, and it must adhere to the laws that are in place.  The Board must make a decision tonight on the request for conditional use of the property.  Counsel Notestine stated this was a tough area of the law for small towns to deal with, and there are extensive state statutes that cannot be excluded.  One of the laws states that towns cannot exclude the location or relocation of any facility used for telephone and telegraph services.  Mr. Head has done a good job tonight providing information about these state laws tonight.  The town can do some things similar to what the City of Brentwood has done, and they have adopted a very extensive ordinance regarding the screening of cell towers, roads, parking, etc.  Unfortunately, the Town of Nolensville has been incorporated for only 12-13 years, and the town does not an extensive body of ordinances that deal with cell towers.  The only things the town has are what Mr. Head has addressed tonight with the conditions.  There are no town laws that would let this cell tower be denied.  There is no state law that says the town can arbitrarily tell Verizon that the cell tower cannot be put there.   In answer to a question regarding Verizon finding another non-residential location for the tower, Mr. Head stated the wireless technology is extremely limited in its capabilities, and it is a true line-of-sight technology.  If a person’s handset cannot see a cell tower, then there is no signal.  As the volume of cell phone users increases, the coverage area of existing towers deceases.  He distributed maps showing a gigantic coverage hole in the Town of Nolensville, and Verizon is trying to fill the need for more coverage. He reviewed the current coverage showing the cell phone coverage at the present time and a map of increased coverage after the installation of the cell tower.  The technology does not allow for another location.  This is not the ideal perfect site because the preferred site was closer into town.  However, that site was too close to historical concerns.  The State Preservation Office advised Verizon to move further south for a location.  He stated Verizon did not want to be a corporate bully by any means.  Technology ties Verizon’s hands on where the towers are located for effective coverage.  Mr. Tom Morris, 7383 Nolensville Road, stated the tower would be within 200’ feet of his property.  He stated in California the maximum height of a cell tower was 50’ and asked about the broadcast technology.  Mr. Wagner, an engineer with Verizon, stated it was a line-of-sight technology and not a broadcast technology.   

Chair Haines stated there are federal and state laws in place that the town of Nolensville does not have a say about.  Counsel Notestine stated both the federal and state laws seem to echo the public benefit doctrine that everyone benefits from cell phones.  The Planning Commission will also hear this request from Verizon and that body may make additional recommendations at their level at their meeting on March 10, 2009.  If the Board of Zoning Appeals and the Planning Commission both approve the request, then it is done at the town level.  Citizens have the right to appeal to Chancery Court if they so choose.  The town may want to look at the Brentwood ordinance and do something different in the future.  Mr. Morris stated he was not an authority but he would like the Verizon representative to explain to the board about his license.  He stated his understanding was that Verizon’s license was for five years for a third of the community, and within ten years they have to serve two-thirds and any other carrier can fill that gap.  It does not to be Verizon.    Mr. Wagner stated that was a true statement.  After Verizon purchases a license, they are given a five or ten year build-out requirement.  Verizon was trying to meet the needs of its customers and sell more cell phones.  Mr. Head stated many communities view the new tower as actually a promotion of the health, safety and welfare of the community.  Local emergency management services have testified at other hearings that the majority of “911” calls are now placed on cell wireless devices.  Verizon does want to make money and today, most everyone appreciates good cell phone coverage.  This has become an expectation in most communities.  In answer to a question from a citizen about delaying this request, Chair Haines stated no.    Mrs. Dever read a letter from a resident from California, Sherry and John Levine, who own property at 9869 Clovercroft, expressing their wish that the request be denied.  Commissioner Dugger asked Counsel Notestine to explain why this item was before the Board of Zoning Appeals tonight.   Counsel Notestine stated this is a conditional use permit.  Under the town’s zoning ordinances that Mr. Head has addressed tonight, there are about 20 requirements that have to be approved.  He did a good job of going over those conditions.  This is not a residential use, but under the town’s zoning ordinance, it does allow the use when conditions are met.  When the conditions are met by the applicant in conjunction with state law, it seems to tie the hands of the Board of Zoning Appeals.  The Board of Zoning Appeals does not create zoning laws.  The Board of Mayor and Aldermen writes the zoning laws with input from the Planning Commission.  This can be looked at down the road, but not by the Board of Zoning Appeals.  Commissioner Norman pointed out the Town’s ordinances are superseded by the State of Tennessee law.  Counsel Notestine said Tennessee law basically says that a town cannot exclude the location of a cell tower, even though town ordinances state otherwise.    For the town’s information, Mr. Head stated there were several new towers in the City of Brentwood, and the screening for this proposed tower is almost identical to what is used in the City of Brentwood.  The same landscape architect was used for this location.    Chair Haines stated unfortunately the Town of Nolensville does not have any large churches where a tower can be placed inside a tall steeple like the one at Brentwood Baptist Church that has a telephone tower in their steeple.  Mr. Andy Smith of 9873 Clovercroft suggested that the TVA tower that is located right up the road could be used for the cell tower.  Whether there is one there or not, Chair Haines stated the Board of Zoning Appeals has no power to tell Verizon to go locate their tower on that tower. Mr. Smith stated he was not for or against this request.  Chair Haines stated the Board’s hands are tied and this was a case of “NIMBY – not in my backyard” situation.  

  Mr. Head stated he could not address Mr. Smith’s comments directly because he did not know the location of the TVA tower.  He stated it would be much cheaper and better for his client’s bottom line to co-locate on any structure.  He stated this was a last resort, and there were no other options.  Verizon is attempting to make this tower as aesthetically pleasing as possible to be a good corporate citizen.  It is much better than a lattice-type structure that is more visible.    Commissioner Truman asked again if any other pieces of property were looked at for consideration that would be friendlier the neighbors.  Mr. Richard Williams, the Verizon locator, stated yes, other areas were considered.  However, you have to deal with rolling hills and terrain blockage.   Another location would involve a taller tower to work.  Towers located too close together also interfere with each other and not solve the problem of dropped calls.  Mrs. Dever asked why the commercial area was not chosen and how much money was the property owner going to receive for the location of the tower on their property.  Mr. Williams stated they were told the commercial location would not be approved because of the historical area.  Mr. Head stated the lease agreement was confidential.  A copy of the memorandum of lease has been filed in the land records and has been submitted to this Board.  There is also a redacted copy with the confidential amounts marked out of the actual land lease of this property for this site.  Mrs. Dever asked why the property owners were not notified.  Mr. Blanks stated all public notices were sent out in a timely manner for this meeting.  He stated comments have been made about California laws, etc.  That really has no bearing on this request because it is Tennessee laws that the town has to abide by.  The application was made under permitted with use conditions A-L, and the applicant has met every one of those conditions.  The Board of Zoning Appeals must determine that all conditions have been met.  The next time this item will be considered is by the Planning Commission at their March 10th meeting.  Conditions can possibly be put on the tower at that meeting.  Counsel Notestine stated the Board of Zoning Appeals would approve or disapprove the conditions tonight.  There is a landscape plan for this tower and the Planning Commission will also review that plan.  Ms. Kelly Berry stated she was a family friend of the Morrison’s and she asked about the health issues associated with cell towers.  Mr. Head stated the applicants were unaware of any adverse health risks from wireless telecommunications facilities.  No published studies have been done showing that wireless communications produce any sort of adverse health effects, and no evidence has been presented before this Board this evening.  Chair Haines closed the public hearing and asked for a motion.  Motion by Mr. Dugger, seconded by Mr. Norman, for approval.  Based on the information before the Board, Commissioner Dugger stated it appears the applicant has met all criteria for the Board of Zoning Appeals to approve.  Commissioner Truman encouraged the citizens to show up for the March Planning Commission meeting.  Commissioner Norman stated there were federal and state laws that have to be considered regarding cell towers.  He stated he understood the concerns of the citizens regarding property values near the towers.  On the other hand, he does use cell phones regularly. 

Counsel Notestine stated he had reviewed the federal laws concerning the towers and they are tough.   Denial of the cell tower would set the town up for violations of existing laws.  Chair Haines made an amendment to the motion for that construction would have no adverse effect on structures or on Mill Creek, and the applicant would meet all applicable storm water requirements.  He stated the Planning Commission will probably require these items during their review.    The amendment died for a lack of a second.   Commissioner Truman stated the reason he would not second the amendment was because it was his understanding that the Planning Commission would apply any conditions to the applicant.  He stated he did not feel this was the responsibility of the Board of Zoning Appeals.  Commissioner Norman said that same reason applied for him also. 

A vote was taken for the original motion and it passed unanimously.  Adjournment:  The meeting was adjourned by acclamation at 8:08 p.m.