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HomeMy WebLinkAbout2007 09 10 Regular 601 Final Development Order for Vertex Development's Telecommunications Tower Conditional Use Permit COMMISSION AGENDA ITEM Consent Informational Public Hearing Regular X 601 September 10. 2007 Meeting ~~/"7 Mgr. / Att. / Dept. REQUEST: The City Attorney requests that the City Commission consider approval of a final development order for Vertex Development's telecommunications tower conditional use permit for the property located at the Tuscawilla Country Club. PURPOSE: The purpose of the development order is to memorialize in writing the City Commission's decision which was reached on August 27, 2007. APPLICABLE LAW AND PUBLIC POLICY: 1. Sections 20-33, 20-451, and 9-600 through 9-606, Winter Springs Code 2. Federal Telecommunications Act of 1996 3. Section 365.172, Florida Statutes CONSIDERATIONS: 1. The City Commission approved Vertex Development's application for a 150 foot unipole telecommunications tower, which will be built on the Tuscawilla Country Club property. Page I of 2 2. The City Commission's decision was subject to several conditions. 3. The purpose of this agenda item is not to reconsider the August 27, 2007 decision or to continue the evidentiary hearing. The proposed development order memorializes in writing the August 27, 2007 decision. STAFF RECOMMENDATION: The City Attorney and City Manager request that the City Commission consider approval of a final development order for Vertex Development's telecommunications tower conditional use permit for the property located at the Tuscawilla Country Club. A TT ACHMENT: The draft Development Order will be presented at the City Commission meeting. COMMISSION ACTION: The City Commission approved Vertex Development's application for a telecommunications tower at the August 27, 2007 meeting. Page 2 of 2 Date: September 10, 2007 The attached was distributed during the discussion of Regular Agenda Item "601" by City Attorney Anthony A. Garganese at the September 10, 2007 City Commission Regular Meeting. CITY OF WINTER SPRINGS DEVELOPMENT ORDER IN AND BEFORE THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA In re: Vertex Development, Inc. Application to build alSO' Unipole on a 50' x 50' Leased Area on a portion of Parcel Id. 31-20-31-5BB-OOOO-004A (aka Tuscawilla Country Club) Date: September 10, 2007 Agenda Item: Regular 601 / ft't\5.,t5f ~O) ()OO?/ THIS CAUSE having come on for consideration, aft~g duly noticed, befure the City Commission ofthe City of Winter Springs on August 13,2007 and August 27,2007, at the request ../ of Vertex Development, LLC ("Vertex"). Pursuant to sectIons 20-33,20-451, and 9-600 through 9-606, Winter Springs Code, Vertex seeks permit approval to construct a 150 foot telecommunications tower, and ancillary ground equipment, on real property owned by Winter Springs Golf, LLC and generally known as the Tuscawilla Golf and Country Club property. The City Commission having heard the arguments of Vertex and other interested parties, and the evidence presented, and having reviewed the record and being otherwise fully advised, hereby adopts the following Findings of Fact and Conclusions of Law: 1. This Order memorializes in writing the final decision rendered by the City Commission on August 27, 2007. At the August 27, 2007 City Commission meeting, the City Commission considered three separate applications submitted by Vertex related to the proposed tower. The applications consisted of public hearing items 500.1 ( conditional use), 500.2 (site plan), and 500.3 (aesthetic review). As more specifically set forth in this Order, the applications were generally approved subject to conditions. 2. First and foremost, with respect to the current and future state of wireless services within the Tuscawilla area, the City Commission retained the services of an engineering consultant, Arthur K. Peters. On March 24, 2006, Mr. Peters filed a report with the City entitled "City of Winter Springs, Florida, Cellular Report." ("Report"). While the Tuscawilla area currently receives some level of cellular service, the Report provided that the Tuscawilla area was "receiving inadequate first cellular service." Further, "a new cell site is required somewhere in the shaded area City of Winter Springs Vertex Development, Inc. Development Order Page 1 of 5 shown on the attached map'" in order to improve and enhance the cellular service within the Tuscawilla area. Soon after Mr. Peter's report, the City Commission adopted Ordinance No. 2006-12 on February 12, 2007 which, among other things, established a three tiered regulatory zoning scheme for locating telecommunication towers within the City of Winter Springs. The new zoning scheme provided for the possibility of an additiona~ non-speculative cell tower site to address the "inadequate" service mentioned in the Report, provided a conditional use permit was granted by the City Commission. 3. Mr. Peters was also retained by the City to evaluate Vertex's application and to advise the City Commission at the aforementioned City Commission meetings. 4. On April 24, 2007, Vertex submitted, and the City received, a conditional use application proposing to build a (7) seven carrier 150 foot stealth unipole structure, and ancillary ground equipment, in accordance with applicable provisions ofthe City Code in order to address the "inadequate" coverage. In accordance with section 365.172(11)(d)3.a., Florida Statutes, the City timely deemed that the application had been "properly completed" on May 4,2007. 5. The subject property is a 50' x 50' lease area, and.a 20' access and utility easement, located on real property currently being used as a golf course and owned by Winter Springs Golf, LLC at 1500 Winter Springs Boulevard, Winter Springs, Florida ("Leased Area"). The parcel identification number for the entire Club Property is 31- 20-31-5BB-0000-004A ("Club Property"). The Leased Area will be located in a tree covered area and surrounded by an existing natural vegetative buffer for screening and aesthetic purposes. As a densely wooded or concealed area on a golf course, the Leased Area constitutes a potential Tier 3 site under Ordinance 2006-12.2 6. Vertex's proposal is more specifically detailed in the signed and sealed engineering plans and specifications, which were prepared by the Foresite Group, dated April 2007 (Job number 102.005) ("Plans"). Said Plans are attached hereto as Exhibit "A" , The shaded area on Arthur K. Peter's map generally depicts a circular area with an outer circumference that substantially mirrors the somewhat circular roadway called Northern Way, which is located within the Tuscawilla PUD. 2 As a prerequisite to approving a conditional use at a Tier 3 site, Vertex was required to present competent substantial evidence to the City Commission which demonstrated that neither a Tier 1 nor a Tier 2 location is available or technically feasible for the location of a tower. At the City Commission hearings, numerous RF coverage maps were introduced by Vertex on behalf of several carriers. City of Winter Springs Vertex Development, Inc. Development Order Page 2 of 5 and fully incorporated herein by this reference.3 Importantly for purposes 0 f aesthetic review compliance, the Plans provide that the proposed tower will consist of only a "unipole," with all antenna, antenna mounts, and antenna wiring being mounted inside the tower. 7. The Club Property (which includes the Leased Area) is subject to a Final Order Approving Settlement Agreement and Amended Settlement Agreement No.1, recorded at Book 3102, Page 1354, Public Records of Seminole County, Florida, as amended by the Second Amendment to Settlement Agreement, recorded at Book 3146, Page 0454, Public Records of Seminole County, Florida ("Settlement Agreement"). The applicability of the Settlement Agreement to the Club Property and Vertex's application is clearly set forth in the City Attorney's opinion letter, dated August 20, 2007, which is part of the record and incorporated herein by this reference.4 Moreover, at the City Commission hearing, a representative of the Club Property read a statement into the record representing that the owners ofthe Club Property desire to explore the transfer of development entitlements on the Club Property in consideration of the City Commission approving Vertex's application. 8. Based on the evidence presented by Vertex's RF engineering experts, and the expert testimony of Arthur K. Peters, Vertex's application currently represents the most economical and technologically feasible solution to address the "inadequate" cellular service within the Tuscawilla area which was identified in the Report. There are no better alternatives located on a Tier 1 or Tier 2 site.5 3 Although the Plans are being attached to this Order, the City Commission recognizes and finds that said Plans must be modified to meet the conditions of approval required by this Order including, but not limited to, the relocation of the Leased Area. Said modifications will be evaluated and may be administratively approved by the City Manager, provided said approvals are consistent with terms and conditions ofthis Order and applicable provisions of the City Code. 4 This Order does not constitute an amendment to the Settlement Agreement. 5 Other Tier 2 sites were evaluated at the Commission hearings including the City's wastewater treatment plant near Sam Smith Park, the Florida Power & Light power poles behind the Club's driving range, and numerous small camouflaged towers similar to the City of Medina, Washington. While the evidence submitted to the City Commission indicated that the plant and the power pole sites could provide some enhanced coverage, the evidence also indicated that these sites would be technologically inferior to Vertex's proposal in terms of adequately accommodating the number of carriers proposed by Vertex or in terms of improved coverage area. With respect to the City of Medina model, evidence suggested that it would be practically difficult and economically unfeasible to similarly implement this model in the Tuscawilla area. Mr. Peters indicated, by letter dated Apri117, 2007, that the Medina model "could require 24 towers City of Winter Springs Vertex Development, Inc. Development Order Page 3 of 5 9. In conclusion, Vertex's conditional use, site plan, and aesthetic review applications were approved effective August 27, 2007 contingent upon satisfYing the following conditions: A. The City and the Club Property owners successfully negotiating a mutually acceptable written amendment to the Settlement Agreement that will expressly allow the tower use at the Leased Area by transferring and/or reducing current development entitlements and preserving open space on the Club Property; B. For purposes of adequately controlling the noise created by the generators, Vertex shall install sound attenuation equipment around the ground equipment (generators) in a manner acceptable to the City; c. Vertex shall provide a revised landscape plan depicting and identifYing all landscape treatment that will be installed and maintained around the tower and ground facilities in order to minimize the visual impact on the community to the greatest extent practicable. Said landscape shall be adequately maintained so long as the tower and related ground facilities exist on the Leased Area; D. The Leased Area depicted on the Plan shall be relocated 100 feet to the northeast within the wooded area in order to provide a greater buffer from the Country Club Village subdivision. The access and utility easement may be modified to accommodate the relocated Leased Area; E. The tower shall be neutral grey in color in order to aesthetically blend into the surrounding area to the greatest extent practicable; F. The 8 foot vinyl coated chain link fence installed around the Leased Area shall be black in color. G. Vertex shall provide a Listed Species Report and sufficient documentation to verifY that the Leased Area does not encroach upon wetlands; and H. Vertex shall apply for and obtain any other requisite permit approvals from the City or any other government agency with jurisdiction over the Leased Area including, but not limited to, land clearing, arbor and building permits. All further approvals are subject to applicable law. to cover that area [Tuscawilla] with 7 providers using 35 ft. towers." City of Winter Springs Vertex Development, Inc. Development Order Page 4 of 5 Done and ordered this 10th September, 2007. CITY OF WINTER SPRINGS, FLORIDA JOHN F. BUSH, Mayor ATTEST: ANDREA LORENZO-LUACES, City Clerk Approved as to legal form and sufficiency for the City of Winter Springs only: ANTHONY A. GARGANESE, City Attorney City of Winter Springs Vertex Development, Inc. Development Order Page 5 of 5 CITY OF WINTER SPRINGS DEVELOPMENT ORDER IN AND BEFORE THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA In re: Vertex Development, Inc. Application to build a 150' Unipole on a 50' x 50' Leased Area on a portion of Parcel Id. 31-20-31-5BB-0000-004A (aka Tuscawilla Country Club) Date: September 10, 2007 Agenda Item: Regular 601 THIS CAUSE having come on for consideration, after being duly noticed, before the City Commission of the City of Winter Springs on August 13, 2007, August 20, 2007, and August 27, 2007, at the request of Vertex Development, LLC ("Vertex"). Pursuant to sections 20-33, 20-451, and 9-600 through 9-606, Winter Springs Code, Vertex seeks permit approval to construct a 150 foot telecommunications tower, and ancillary ground equipment, on real property owned by Winter Springs Golf, LLC and generally known as the Tuscawilla Golf and Country Club property. The City Commission having heard the arguments of Vertex and other interested parties, and the evidence presented, and having reviewed the record and being otherwise fully advised, hereby adopts the following Findings of Fact and Conclusions of Law: 1. This Order memorializes in writing the final decision rendered by the City Commission on August 27, 2007. At the August 27, 2007 City Commission meeting, the City Commission considered three separate applications submitted by Vertex related to the proposed tower. The applications consisted of public hearing items 500.1 (conditional use), 500.2 (site plan), and 500.3 (aesthetic review). As more specifically set forth in this Order, the applications were generally approved subject to conditions. 2. First .and foremost, with respect to the current and future state of wireless services within the Tuscawilla area, the City Commission retained the services of an engineering consultant, Arthur K. Peters. On March 24, 2006, Mr. Peters filed a report with the City entitled "City of Winter Springs, Florida, Cellular Report." ("Report"). While the Tuscawilla area currently receives some level of cellular service, the Report provided that the Tuscawilla area was "receiving inadequate first cellular service." Further, "a new cell site is required somewhere in the shaded area City of Winter Springs Vertex Development, Inc. Development Order Page 1 of 5 shown on the attached map"' in order to improve and enhance the cellular service within the Tuscawilla area. Soon after Mr. Peter's report, the City Commission adopted Ordinance No. 2006-12 on February 12, 2007 which, among other things, established a three tiered regulatory zoning scheme for locating telecommunication towers within the City of Winter Springs. The new zoning scheme provided for the possibilityofan additional, non-speculative cell tower site to address the "inadequate" service mentioned in the Report, provided a conditional use permit was granted by the City Commission. 3. Mr. Peters was also retained by the Cityto evaluate Vertex's application and to advise the City Commission at the aforementioned City Commission meetings. 4. On April 24, 2007, Vertex submitted, and the City received, a conditional use application proposing to build a (7) seven carrier 150 foot stealth unipole structure, and ancillary ground equipment, in accordance with applicable provisions ofthe City Code in order to address the "inadequate" coverage. In accordance with section 365.172(11)(d)3.a., Florida Statutes, the City timely deemed that the application had been "properly completed" on May 4, 2007. 5. The subject property is a 50' x 50' lease area or an equivalent lease area, and a 20' access and utility easement, located on real property currently being used as a golf course and owned by Winter Springs Golf, LLC at 1500 Winter Springs Boulevard, Winter Springs, Florida ("Leased Area"). The parcel identification number for the entire Club Property is 31-20-31-SBB-0000-004A ("Club Property"). The Leased Area will be located in a tree covered area and surrounded by an existing natural vegetative buffer for screening and aesthetic purposes. As a densely wooded or concealed area on a golf course, the Leased Area constitutes a potential Tier 3 site under Ordinance 2006-12.Z 6. Vertex's proposal is more specifically detailed in the signed and sealed engineering plans and specifications, which were prepared by the Foresite Group, dated April 2007 (Job number 102.005) ("Plans"). Said Plans are attached hereto as Exhibit "A" ' The shaded area on Arthur K. Peter's map generally depicts a circular area with an outer circumference that substantially mirrors the somewhat circular roadway called Northern Way, which is located within the Tuscawilla PUD. Z As a prerequisite to approving a conditional use at a Tier 3 site, Vertex was required to present competent substantial evidence to the City Commission which demonstrated that neither a Tier 1 nor a Tier 2 location is available or technically feasible for the location of a tower. At the City Commission hearings, numerous RF coverage maps were introduced by Vertex on behalf of several carriers. City of Winter Springs Vertex Development, Inc. Development Order Page 2 of 5 and fully incorporated herein by this reference.3 Importantly for purposes o f aesthetic review compliance, the Plans provide that the proposed tower will consist of only a "unipole,"with all antenna, antenna mounts, and antenna wiring being mounted inside the tower. 7. The Club Property (which includes the Leased Area) is subject to a Final Order Approving Settlement Agreement and Amended Settlement Agreement No. 1, recorded at Book 3102, Page 1354, Public Records of Seminole County, Florida, as amended by the Second Amendment to Settlement Agreement, recorded at Book 3146, Page 0454, Public Records of Seminole County, Florida ("Settlement Agreement"). The applicability of the Settlement Agreement to the Club Property and Vertex's application is clearly set forth in the City Attorney's opinion letter, dated August 20, 2007, which is part of the record and incorporated herein by this reference.4 Moreover, at the City Commission hearing, a representative of the Club Property read a statement into the record representing that the owners of the Club Property desire to explore the transfer of development entitlements on the Club Property in consideration of the City Commission approving Vertex's application. 8. Based on the evidence presented by Vertex's RF engineering experts, and the expert testimony of Arthur K. Peters, Vertex's application currently represents the most economical and technologically feasible solution to address the "inadequate" cellular service within the Tuscawilla area which was identified in the Report. There are no better alternatives located on a Tier 1 or Tier 2 sites s Although the Plans are being attached to this Order, the City Commission recognizes and finds that said Plans must be modified to meet the conditions of approval required by this Order including, but not limited to, the relocation of the Leased Area. Said modifications will be evaluated and maybe administratively approved by the City Manager, provided said approvals are consistent with terms and conditions of this Order and applicable provisions of the City Code. a This Order does not constitute an amendment to the Settlement Agreement. s Other Tier 2 sites were evaluated at the Commission hearings including the City's wastewater treatment plant near Sam Smith Park, the Florida Power & Light power poles behind the Club's driving range, and numerous small camouflaged towers similar to the City of Medina, Washington. While the evidence submitted to the City Commission indicated that the plant and the power pole sites could provide some enhanced coverage, the evidence also indicated that these sites would be technologically inferior to Vertex's proposal in terms of adequately accommodating the number of carriers proposed by Vertex or in terms of improved coverage area. With respect to the City of Medina model, evidence suggested that it would be practically difficult and economically unfeasible to similarly implement this model in the Tuscawilla area. Mr. Peters indicated, by letter dated April 17, 2007, that the Medina model "could require 24 towers City of Winter Springs Vertex Development, Inc. Development Order Page 3 of 5 9. In conclusion, Vertex's conditional use, site plan, and aesthetic review applications were approved effective August 27, 2007 contingent upon satisfying the following conditions: A. The City and the Club Property owners successfully negotiating a mutually acceptable written amendment to the Settlement Agreement that will expressly allow the tower use at the Leased Area by transferring and/or reducing current development entitlements and preserving open space on the Club Property; B. For purposes of adequately controlling the noise created by the generators, Vertex shall install sound attenuation equipment around the ground equipment (generators) in a manner acceptable to the City; C. Vertex shall provide a revised landscape plan depicting and identifying all landscape treatment that will be installed and maintained around the tower and ground facilities in order to minimize the visual impact on the community to the greatest extent practicable. Said landscape shall be adequately maintained so long as the tower and related ground facilities exist on the Leased Area; D. The Leased Area depicted on the Plan shall be relocated 100 feet to the northeast within the wooded area in order to provide a greater buffer from the Country Club Village subdivision. The access and utility easement may be modified to accommodate the relocated Leased Area; E. The tower shall be neutral grey in color in order to aesthetically blend into the surrounding area to the greatest extent practicable; F. The 8 foot vinyl coated chain link fence installed around the Leased Area shall be black in color. G. Vertex shall provide a Listed Species Report and sufficient documentation to verify that the Leased Area does not encroach upon wetlands; and H. Vertex shall apply for and obtain any other requisite permit approvals from the City or any other government agency with jurisdiction over the Leased Area including, but not limited to, land clearing, arbor and building permits. All further approvals are subject to applicable law. to cover that area [Tuscawilla] with 7 providers using 35 ft. towers." City of Winter Springs Vertex Development, Inc. Development Order Page 4 of 5 Done and ordered this 10"' September, 2007. CITY OF WINTER SPRINGS, F'3.ORLDA. JO F. BUSH, Mayor ATTEST: . REA LORENZO-LUACES, City Clerk App;raved es to legal form and sufficiency for the "'~. ~fWinter Springs only: ANTTI A. GARGANES ,City Attorney City of Winter Springs w ,.~ , Vertex Development, Inc. Development Order Page 5 of 5