FAIRBANKS NORTH STAR BOROUGH PLANNING COMMISSIONco.fairbanks.ak.us/Boards/BoardCommissionMeeting... · Melissa Owen, owner, explained that they were taking the process one step at

FAIRBANKS NORTH STAR BOROUGH PLANNING COMMISSION

MINUTES

April 7, 2015

A regular meeting of the Fairbanks North Star Borough Planning Commission was held in the Assembly Chambers, Borough Administration Center, 809 Pioneer Road, Fairbanks, Alaska. The meeting was called to order at 7:00 p.m. by Jerry McBeath, Chairman. MEMBERS PRESENT: Jerry McBeath Flor Banks

Chris Guinn Mark Billingsley Charles Whitaker Angela Major Greg Bringhurst Sean Reilly

Robert Peterson MEMBERS ABSENT: Dave Lanning OTHERS PRESENT: Christine Nelson, Director of Community Planning

Melissa Kellner, Planner III Nancy Durham, Planner III Cynthia Klepaski, Asst. Borough Attorney Tanya Hughes, Administrative Assistant I

A. ROLL CALL B. MESSAGES

1. Chairperson’s Comments:

Mr. McBeath informed that he had attended the Assembly meeting to answer questions regarding RZ2015-013 that rezoned Lot 22 of Fairbanks Townsite; the Assembly sustained the Planning Commission recommendation to rezone the block from Two Family (TF) to Multi Family Professional Office (MPO). The opponents voiced the opinion that the Planning Commission was initiating changes; his experience on the commission was that the Planning Commission was a highly reactive body, responding to items brought before them.

2. Communications to the Planning Commission

NONE

3. Citizens’ Comments – limited to three (3) minutes NONE

a. Agenda items not scheduled for public hearing.

b. Items other than those appearing on the agenda.

PC Meeting Minutes 2 | P a g e April 7, 2015

4. Disclosure & Statement of Conflict

Mr. Whitaker declared a potential Conflict of interest with CU2015-003. He has performed work for Mr. Guthrie and several of the property owners in the audience. Mr. McBeath inquired if he had received a Dear Property Owner letter regarding the application. Mr. Whitaker responded no. Mr. McBeath asked Ms. Klepaski if that qualified as a financial conflict. Ms. Klepaski inquired what percentage of total income it represented. Mr. Whitaker responded miniscule. Mr. McBeath ruled no Conflict of Interest for Mr. Whitaker. Mr. Guinn declared a potential Conflict of Interest with V2015-007. He has been a colleague of one of the owners and she has contacted him several times within the past year to discuss the property in question; to appraise, value, assess improvements. He expressed that although he gave advice without a fee he would feel awkward voting on this item. Ms. Klepaski clarified that he believed he had a personal interest in this case, not a monetary one. Mr. Guinn agreed. Ms. Klepaski counseled that it could be a conflict in a variance. Mr. McBeath called for a vote.

MOTION: That a Conflict of Interest exists for Mr. Guinn regarding V2015-007. ROLL CALL Eight (8) in Favor: Mr. Bringhurst, Mr. Whitaker, Mr. Peterson, Ms. Major, Mr. Reilly, Mr. Billingsley, Ms. Banks, and Mr. McBeath Zero (0) Opposed:

CONFLICT OF INTEREST FOR MR. GUINN Mr. Bringhurst declared a potential Conflict of interest regarding CU2015-003, having a personal interest because he was a friend of the applicant. Mr. McBeath queried if he believed that he could be objective.


Mr. Bringhurst responded that he could be objective; however, he wanted to declare it for the record. Mr. McBeath inquired if he had any financial interest or had received a Dear Property Owner letter. Mr. Bringhurst replied no. Mr. McBeath called for a vote.

MOTION: That a Conflict of Interest exists for Mr. Bringhurst regarding CU2015-003. ROLL CALL One (1) in Favor: Mr. Guinn Seven (7) Opposed: Mr. Whitaker, Mr. Peterson, Ms. Major, Mr. Reilly, Mr. Billingsley, Ms. Banks, and Mr. McBeath.

NO CONFLICT OF INTEREST FOR MR. BRINGHURST Mr. Billingsley declared a potential Conflict of Interest regarding CU2015-003; he knew the property owner and family. He expressed that it would not affect his ability to be objective. Mr. McBeath inquired if he had any financial dealings with the property owners or had received a Dear Property Owner letter regarding this application. Mr. Billingsley responded no. Mr. McBeath restated Mr. Billingsley’s assertion that his personal knowledge of the applicant would not impair his ability to be objective and called for a vote.

MOTION: That a Conflict of Interest exists for Mr. Billingsley regarding CU2015-003. ROLL CALL One (1) in Favor: Mr. Guinn, Seven (7) Opposed: Mr. Whitaker, Mr. Peterson, Ms. Major, Mr. Reilly, Ms. Banks, Mr. Bringhurst, and Mr. McBeath.

NO CONFLICT OF INTEREST FOR MR. BILLINGSLEY


Ms. Major declared a potential Conflict of Interest regarding CU2015-003. An employee of hers was on the Dear Property Owner letter mailing list; he has not discussed the application and I did not receive a Dear Property Owner letter. Mr. McBeath inquired if it was a supervisory work relationship. Ms. Major responded that was correct. Ms. Klepaski inquired if Ms. Major could be fair and impartial. Ms. Major replied yes. Mr. McBeath called for a vote.

MOTION: That a Conflict of Interest exists for Ms. Major regarding CU2015-003. ROLL CALL Two (2) in Favor: Mr. Peterson and Mr. Reilly. Six (6) Opposed: Mr. Billingsley, Ms. Banks, Mr. Bringhurst, Mr. Guinn, Mr. Whitaker, and Mr. McBeath.

NO CONFLICT OF INTEREST FOR MS. MAJOR

Mr. McBeath passed the gavel to Vice Chair Ms. Major. Mr. McBeath declared a potential Conflict of Interest regarding CU2015-003; he lives on Red Fox Drive. He did not receive a Dear Property Owner letter, has no financial dealings with the applicants or neighbors or the Alaska Wireless Network, and does have cell service through AT&T. Ms. Klepaski inquired if Mr. McBeath could be fair and impartial. Mr. Billingsley inquired how far away he lived. Mr. McBeath explained that he lived 1/4 - 1/3 mile off of Ballaine Road into Musk Ox Subdivision. It is approximately 2 ½ miles away and no one at this end of the road received Dear Property Owner letters; however, owners at the other end did receive them. He added that he was not sure if the tower, if approved, would be visible from his property. Ms. Major called for a vote.


MOTION: That a Conflict of Interest exists for Mr. McBeath regarding CU2015-003. ROLL CALL One (1) in Favor: Mr. Billingsley Seven (7) Opposed: Mr. Reilly, Ms. Banks, Mr. Bringhurst, Mr. Guinn, Mr. Whitaker, Mr. Peterson, and Ms. Major.

NO CONFLICT OF INTEREST FOR MR. MCBEATH

C. *MINUTES

1. Minutes from March 3, 2015 Planning Commission Meeting

2. Minutes from March 17, 2015 Planning Commission Meeting D. APPROVAL OF AGENDA AND CONSENT AGENDA

Approval of Consent Agenda passes all routine items indicated by asterisk (*) on agenda. Consent Agenda items are not considered separately unless any Planning Commission member or citizen so requests. In the event of such request, the item is returned to the general agenda.

MOTION: To approve agenda and consent agenda, including revised minutes of previous

meeting by Mr. Peterson, seconded by Mr. Whitaker.

MOTION APPROVED WITHOUT OBJECTION

E. CONSENT AGENDA ITEMS NONE F. PUBLIC HEARING

OATH GIVEN V2015-007 A request by James and Melissa Owen for a setback variance of seven feet (7’) to the side-yard setback requirement of twenty five feet (25’) for an existing shop with attached carport located eighteen and one tenth of a foot (18.1’) from the south property line in the Rural Estate 2 (RE-2) zone on tax lot 2915, Section 29, Township 1 North, Range 2 East, Fairbanks Meridian. (Located at 710 Hillcrest Drive at the north end of Hillcrest Drive, north of Chena Hot Springs Road)


Nancy Durham presented the staff report. Based upon staff analysis, the Department of Community Planning recommended denial of the proposed request and the adoption of the following findings of fact in support:

1. The proposed variance does not conform to the intent and purpose of Title 18 and

other Ordinances and State Statutes as there are no physical topographic features or other special conditions of the lot that require a variance.

2. Current owners/applicants built the structure (shop) in 2004 creating the non-conforming setback.

3. Denial of the proposed variance will not deprive the applicant the use of his/her

property in the manner equivalent to the use permitted to be made by the owners of property in the immediate area. The shop could have been built in compliance with the zoning standards.

4. The proposed variance will not protect the public health, safety, or welfare. The

encroachment of the shop seven feet (7’) into the setback does not improve public health, safety, or welfare.

5. Alaska State Statute states that “a variance from a land use regulation may not be

granted if…the variance is sought solely to relieve pecuniary hardship or inconvenience.”

6. The proposed variance is sought solely to relieve pecuniary hardship or

inconvenience, as it appears the variance application is stemming from the need to facilitate the sale of the property and is prohibited by state statutes.

Mr. McBeath inquired if the current draft ordinance regarding variances had already been adopted, would the applicant have been able to seek an administrative hearing. Ms. Durham responded no; the request was just over the 25%. Mr. McBeath inquired if there were any other factors involved. Ms. Durham advised that the current owners constructed in the setback, they did not purchase it from another owner. Mr. McBeath inquired requested information regarding two variances applied for in the same area; one approved and the other withdrawn. Ms. Durham informed that the variances were for DOT; one for the Chena Hot Springs Road project which reduced the lot size and was a Highway Project Variance, the other was withdrawn from 1976 and while not much information was retained it was also a DOT application and likely also a Chena Hot Springs Road Highway Project Variance. Mr. McBeath noted that the only variance requests in the area that were approved were for a different matter. Ms. Durham concurred.


Mr. Peterson queried if the change to setbacks since 1972 was more or less restrictive. Ms. Durham remarked that in 1977 when zoning was applied it was 35-foot setbacks; in 1988 with the adoption of Ordinance 010 the side yard setback requirement was reduced to 25 feet, therefore less restrictive. James Owen, owner, explained that they decided to sell the property and move out of state and the as built survey showed an error when I built. The property line has no easements. It is a well-established neighborhood, no new land to be developed. The mortgage company requires compliance with zoning in order to secure financing. Ms. Banks inquired if they were aware that they were out of compliance when the shop was built. Mr. Owen replied no. Mr. Whitaker inquired if Tax Lot 2934 has a residence and if they had approached the owners about purchasing 7 feet of their property. Mr. Owen responded yes it had a house; they approached the neighbors and explained their dilemma but did not have an answer to whether they would sell the 7 feet or not. Melissa Owen, owner, explained that they were taking the process one step at a time. Mr. Billingsley inquired if the shop was inside the setback as well as the carport; how permanent is the carport structure.

Mr. Owen responded the carport was 10X10 treated posts with a roof attached to the shop; the shop has a concrete floor.

Mr. Billingsley inquired if the roof was inside the setback?

Mr. Owen replied yes.

Mr. McBeath noted that he would have to move the shop.

Mr. Owen responded that he would have to reconstruct the shop.

Mr. McBeath asked if that were feasible.

Mr. Owen answered that he did not think it was; there is an 8 inch concrete slab 4 foot into the ground as a foundation which would need to be removed.

Ms. Major spoke regarding the topography of this lot and requested a commentary regarding how he selected this location in the lot for the structure.

Mr. Owen indicated that this was the best choice at the time. There is a space between the house and shop that I wanted to maintain in the event of a fire. If I built to the north it would have to be moved 20 feet to the west. There are erosion issues to consider, this lot is located on the top of the hill and the lot crests both directions; the farther west, the more erosion and water drainage issues. It could have been moved further north but I would have had to cut down a lot of trees that make a natural barrier to the road.


Mr. Whitaker asked, regarding the lot south of yours, how far from the common property line are the structures built. Mr. Owen approximated 175 feet to the side of their house. Ms. Owen added that they had a wood shed also. Mr. Bringhurst queried if Mr. Owen chose the location for the shop because of a special condition of this property. Mr. Owen replied yes, I took into account the slope and water drainage from the roof; the roofline is 40 feet by 50 feet and it sheds a river in heavy rainstorms. Without ground vegetation to slow down the drainage it could create a problem. I wanted drainage to have a chance to be absorbed by natural vegetation prior to entering the ditch on the main road. Ms. Owen added that water drainage was a concern last summer with all of the rain. Public Hearing Opened Mary Clancy, affected property owner, informed that she and her husband have lived in this area for 20 years and have no concern regarding the request for a variance. It does not interfere with our Health, Safety, or Welfare. She expressed gratitude for the location of the structure as it mitigates the water drainage added to Hillcrest Drive. We live to the south and would have gotten the entire run off had the shop been built closer to the road. Public Hearing Closed MOTION Move to deny V2015-007 with (1) Finding of Fact by Mr. Billingsley No Second

MOTION FAILS MOTION Move to approve V2015-007 with (1) Finding of Fact by Mr. Reilly, seconded by

Mr. Bringhurst. Discussion Ms. Banks spoke in opposition to the request; the shop could have been constructed in compliance with zoning standards, there is ample space on the lot. Mr. Billingsley spoke in favor of the variance if the requirement that the owner did not cause the issue was flexible. Was there any case law or standard by which that could be interpreted? Ms. Klepaski informed there was none. Mr. Billingsley added that there was no way around that requirement then.


Mr. McBeath educated that every variance case brought within the last 4 years was denied if the non-compliance was due to the current owner’s decision or action. Members of the Borough Assembly have stated that when owners make mistakes they should cure them themselves. Mr. Whitaker asked Ms. Durham, if the applicants were able to purchase land from their neighbors they would not have to purchase an entire strip, correct? Ms. Durham concurred, just around the structure. Mr. Whitaker added approximately just over 300 s feet squared. Ms. Durham informed that they could simply purchase enough to gain a 25 foot setback to the property line. Mr. Bringhurst expressed that this was a tough situation for the owner. It does not appear that the owner caused this situation knowingly. The placement was better on the property for drainage, avoiding potential problems with runoff on the road. Ms. Major agreed with Mr. Bringhurst’s comments. This is a difficult case; there are topographical concerns on the property, a neighbor and a neighbor expressed appreciation that the shop was constructed exactly where it was located, the location was carefully considered. However, the same individuals who caused the compliance issue are the ones making the request and they did not have a zoning permit prior to constructing the structure. Mr. Reilly agreed with Ms. Major that the topography was problematic and the current structure actually improves Public Health and Safety by routing drainage away from the road system; that should be a considered. Mr. Peterson inquired if the Borough had a second opinion on the survey performed on the property. There were problems noted during a previous meeting in which the property in question was not surveyed properly. Does the Borough verify the accuracy of a survey? Ms. Nelson responded no, that is the surveyor’s licensing requirement. They are responsible for accuracy. Mr. Peterson asked the owners if they had obtained a second opinion, if the monuments were still in place, and if they considered a second survey to verify accuracy. Ms. Owen relayed that a lot of digging was done and the adjoining property owners corners were found, we have never had a survey of the property before. We did not seek a second opinion, we were satisfied with this survey and another would be cost prohibitive. Mr. McBeath spoke in opposition of the request. This was a difficult case and I am happy to see that you took responsibility for making the decision that went against the setback requirements. Many applicants come before the Commission and do not accept responsibility. The reasons for locating the shop in this spot on the lot are noted; however, Ms. Durham has experience evaluating variance requests and stated that there were other places on the lot where it could have been constructed. The garage could have been built in conformance with the setback requirements. If the Planning Commission denies the variance request there are several options available; move the structure, tear it down, or sell the house without bank financing.


ROLL CALL Two (2) in Favor: Mr. Bringhurst and Mr. Reilly Six (6) Opposed: Mr. Billingsley, Ms. Banks, Mr. Whitaker, Mr. Peterson, Ms. Major and Mr. McBeath

MOTION DENIED Ms. Nelson counseled that if a motion to approve fails, another motion is not necessary. Ms. Klepaski added that if the motion fails you do need to adopt some Findings of Fact. Mr. McBeath ruled that it would be simpler to rule on another motion. MOTION Move to deny V2015-007 with (6) Findings of Fact by Mr. Peterson, seconded

by Mr. Whitaker. Discussion Mr. Billingsley commented that his earlier motion to deny with only 1 Finding was because, in my opinion, the other Findings overreach. I don’t think we need to pad our decision with weaker Findings, only Finding #2 is necessary. MOTION Move to amend Findings of Fact to included numbers 2, 3 deleting the last

sentence, 5, & 6 by Ms. Major, seconded by Mr. Billingsley. Discussion Mr. Billingsley agreed with the proposed amendment to the Findings; there are topographical features specific to this lot. Ms. Banks inquired why the removal of the last sentence in Finding #3. Ms. Major replied that it is subjective. Mr. Whitaker expressed the hope that the issue can be rectified easily by purchasing a small amount of land from the neighbor. Ms. Klepaski counseled that the Commission would need to vote on the amendment first.


ROLL CALL ON THE AMENDMENT Seven (7) in Favor: Mr. Bringhurst, Mr. Whitaker, Mr. Peterson, Ms. Major, Mr. Reilly, Mr. Billingsley, and Mr. McBeath One (1) Opposed: Ms. Banks

MOTION APPROVED ROLL CALL ON THE MAIN MOTION AS AMENDED Seven (7) in Favor: Ms. Banks, Mr. Whitaker, Mr. Peterson, Ms. Major, Mr. Reilly, Mr. Billingsley and Mr. McBeath One (1) Opposed: Mr. Bringhurst

MOTION APPROVED CU2015-003 A request by Bryan Maracle on behalf of Alaska Wireless Network and Amanda Copus for conditional use approval of a 120-foot communications tower in the Rural Estate 4 (RE-4) zone on Lot 06, Block 10 of Musk Ox Subdivision 1st Addition. (Located at 1622 Wolverine Lane, on the northwest corner of La Rue Lane and Wolverine Lane) Mr. McBeath explained that prior to the meeting it became apparent that not all information prepared by the applicant had been distributed in advance to the Planning Commissioners; both applicant and the representative for the neighborhood community waived that as a requirement due to the fact that all information would be included in the presentation to be given. Ms. Nelson requested that the applicant and neighborhood representative both waive the requirement orally for the record. Bryan Maracle, applicant, acknowledged that he waived the right to require the complete application in front of the Planning Commission prior to the Public Hearing. John Burns, representative for the affected neighborhood, waived the right to require the complete application in front of the Planning Commission prior to the Public Hearing. Ms. Klepaski added that the staff has the documents missing from the printed Planning Commission packet; she queried if both Mr. Maracle and Mr. Burns understood that upon appeal those documents would be included in the record. Mr. Maracle concurred. Mr. Burns agreed; the documents were in the file for review, the only oversight was that they were not printed in the Planning Commission packet.


Ms. Nelson agreed, they are available digitally and can be viewed on the overhead screen if necessary during the meeting. OATH GIVEN Ms. Kellner listed the documents not printed in the packet: lease agreement for the property, FCC license, FAA determination, removal agreement, visual impact analysis, alternative site analysis, additional narrative, and a yard modification request; the first 4 are required as part of the application checklist, the last 4 were included in the staff presentation and staff report and gave the staff report, based on staff analysis the Department of Community Planning recommends denial of the request and the adoption of the following Findings of Fact in support of denial:

1. The proposed communications tower does not conform to the intent and purpose of Title 18 and of other ordinances and state statutes, specifically, the applicant has not adequately demonstrated that:

a. the visual impact will be minimized by this location, b. it is necessary to locate in a residential neighborhood. c. This location within all potential sites in residential zones has the least impact on

surrounding property owners and the neighborhood. 2. The applicant has not adequately demonstrated that public health, safety, or welfare will

not be negatively impacted by placing a tower of this height in this location.

Mr. Billingsley queried why the visual impact analysis was considered inadequate.

Ms. Kellner responded there were two reasons; first, the burden of proof falls to the applicant and they have not rebutted the neighborhood statements regarding visual impact, second, there was no analysis of other potential sites and we cannot determine if this site has the least visual impact because this was the only site explored.

Mr. Billingsley pointed out that they stated they had looked at 5 alternative sites; how many sites would be considered adequate by the Community Planning?

Ms. Kellner replied that there was not a set number; however, no documentation was submitted for comparison with the selected site that identified the alternative and documented why they were not pursued or adequate for the applicant’s needs.

Mr. McBeath inquired if Ms. Kellner knew the height of the single alternative site described by the applicant.

Ms. Kellner offered to pull the information from the GIS database; the alternative site was located at approximately 710 feet and the selected site was located at approximately 1020-1040 feet.

Mr. McBeath noted that the difference was over 300 feet; inquiring why they would have considered a lower property. Wasn’t height a critical variable when locating a cell tower?

Ms. Kellner deferred the question to the applicant to describe their network requirements. Mr. Maracle, applicant and project manager introduced himself.


Nick Miller, Alaska Wireless Network (AWN) representative, addressed two sections of the staff report. First, location and visual impact of the tower; several modifications were included to reduce the visual impact, the landscaping plan, an offer to paint the tower brown, and using flush mounted antennas’. The staff report stated that there was not adequate proof for the visual analysis; however, they had submitted 3 times the required photo simulations. Photo simulations were done to scale, using generally accepted practices, and are contracted through outside firms. We believe that the tower the residents submitted photos of was at the Musher’s Hall; the top of which was 28 inches in diameter; the proposed tower is only 18 inches. That was a bad simulation due to diameter and we do not know how far away the photo was taken from the tower. The company Alaska Wireless Network uses for photo simulations takes photos from the distances required by Community Planning. In response to the staff recommendation, we assert that the requirements have been met. We have done as much as we can to minimize the visual impact of the tower, several modifications to the design; there will always be some impact. Second, the necessity to locate in a Residential neighborhood; there was only 1 non-residential lot that would meet the coverage requirement for this tower, the Rural Agricultural (RA) lot described. The tower would have to have been 150 feet tall and the owner was not interested in leasing any portion of his property for this use. There were 5 other locations examined, all residential; there were no other non-residential lots available to locate a tower on. We did not submit a visual analysis form because the land owners were not interested in leasing to AWN; the towers would have been between 120-160 feet. The staff report states that the applicant bears the burden of proof that this location has the least impact on the neighborhood; however, upon review of the requirements that does not appear to be a criteria for approval in Title 18.

Mr. Maracle stated that Mr. Miller had covered all the points’ specific to the application and staff report.

Mr. Whitaker inquired who was required to submit the application to the FAA regarding lighting concerns.

Mr. Maracle replied that was done by the project manager or construction manager, and then was submitted to the regulatory position that processes all of the filings.

Mr. Whitaker inquired if the application included a height or if the FAA provided a range that required lighting.

Mr. Maracle informed that they submitted an application with a height and the FAA makes a finding based on the submitted height.

Mr. Billingsley asked Mr. Miller to identify where the 5 alternative residential sites were located and explain how they were selceted.

Mr. Miller explained that their engineers developed a search ring, which is a circle on a map that identifies the desired location. Generally we contact 5 property owners and find 1 or 2 that are willing and then perform an analysis on the two possible properties to select the best and then move forward with that land owner. Once we find an owner that is willing to work with us we do not continue to search for additional potential lots.

Mr. Billingsley queried if the other lots considered were adjacent properties.

Mr. Maracle replied that 1 was, the other 3 were non-adjacent.


Mr. Billingsley inquired if the engineers had created several search rings. Mr. Maracle responded there was 1 search ring which has a ½ mile radius. Mr. Billingsley queried why all the lots were not approached. Were there reasons that they were not considered? Mr. Maracle responded yes there are a number of acquisition factors; placement of the house on the property, what the property looks like, and topography. These factors eliminate some lots. Mr. Billingsley inquired if they were asked for proof of the 4 other contacts, could a list be provided? Mr. Maracle answered yes. Mr. McBeath inquired if they looked at non-residential property, such as Ballaine Veterinary Clinic or out in Pearl Creek. The Veterinary clinic was located at the peak of Ballaine Road. Mr. Maracle explained that they did not; those properties were located beyond the ½ mile search ring. Mr. Reilly requested Mr. Maracle respond to owner responses that counter his claim that there was a gap in service in this area. What type of coverage was AWN trying to achieve. Mr. Miller explained that the design goals were to deliver high speed internet service. There can be good voice coverage, however, data speed are low. Wireless networks are no longer designed for voice; they are designed for good indoor data service, especially in rural areas where there is not a lot of broadband service available through hardline service. Some of the individuals I spoke with use a high priced satellite service; with the expansion of the network those customers have the opportunity to use a high speed data service at a reasonable price. Mr. Billingsley conjectured that some people who would testify might say they do have good data coverage, possibly from a different network; have you considered co-location? Mr. Miller responded that there was 1 tower; however, it would not provide the high speed data that they were looking for. The difference between carriers is basically the frequency bands they use. Verizon and AT&T transmit at 700 and 850 megahertz which has a better penetration rate for buildings. We are at a disadvantage when it comes to covering square miles and penetrating through buildings. Mr. Billingsley inquired if that was because AWN is a smaller company. Mr. Miller informed that the lower frequencies were awarded to the incumbent carriers 15-20 years ago; when the lower spectrum became busy they moved to different bands. The FCC had this current, higher band available. Recently they cleared the 700 bands, previously used by emergency services, but they were sold for hundreds of millions of dollars to the larger companies.


Mr. Whitaker inquired if this tower was raised 10% under the new FCC regulations would it need a light? Would it have to be refiled through the FAA? Mr. Miller replied that it would take a lot of work, verified structurally sound, and refiled through the FAA. Mr. Whitaker inquired if he knew the impetus behind the new regulation. Mr. Miller responded that it allowed companies to not completely go through the new process, not unilaterally raise tower heights. Mr. McBeath asked Mr. Miller if the gap in coverage he referred to was a gap in wireless or wired coverage. Mr. Miller explained that from his company’s perspective there is a gap in both. Mr. Maracle added that was a microwave site. Mr. Miller explained there was no fiber at the site then. Mr. McBeath inquired if GCI laid lines for connectivity in this area. Mr. Maracle responded that wired cable and internet service does not extend to this area; it is further down the hill. Mr. Peterson requested a comment regarding Finding of Fact #2: “The applicant has not adequately demonstrated that public health, safety, or welfare will not be negatively impacted by placing a tower of this height in this location” as it is up to the applicant to demonstrate. Mr. Miller inquired based on what criteria; there is no criterion for me to use to prove or disprove this. We are proposing to provide cellular service to this area; we will provide Phase II wireless data for safety, when an individual dials 911 their location will automatically be sent; we have minimized the visual impact as much as possible; there is no radiation hazard with a facility of this height, and all of this information was included in the application. Mr. Peterson surmised that Mr. Miller believed they did adequately demonstrate the criteria and would argue that Finding of Fact #2 is not accurate. Mr. Miller concurred. Mr. Reilly spoke regarding the potential 911 impact mentioned by Mr. Miller. Mr. Miller explained that when a person dials 911 the location is automatically sent so that 911 services can be accurately dispatched. Mr. Reilly inquired if he was aware of any problems currently with emergency services finding the correct location. Mr. Miller answered no and explained that in areas with poor service all 911 calls are routed to a different carrier for delivery.


Mr. Billingsley inquired if using multiple smaller towers or mounting equipment on existing power poles were considered. Mr. Miller responded that those could be options; however, that would require several more Conditional Use permits, locating multiple towers in a residential neighborhood which would have a larger impact that the current application. We still would need to be above the tree line, we could not use 5 or 6 50 foot poles to accomplish what we need. Mr. Billingsley questioned if the tower were reduced to 100 feet would it be worth your while? Mr. Miller replied that a 100 foot tower would not provide adequate coverage, referring to exhibit I, and no other carrier would able to co-locate. Mr. Billingsley referred to a letter written to the property owners stating this tower would provide service to 112 wireless subscribers and support to another 2602 subscribers. Mr. Maracle elucidated that the larger number represented the number of GCI subscribers in this zip code, the smaller number are the subscribers that would be directly impacted; this would be their primary tower when placing a call. Mr. Billingsley surmised that the other 2602 would have another primary tower. Mr. Maracle agreed; while traveling they would use this tower as well. Public Hearing Opened

John Burns, affected property owner and neighborhood representative, spoke in opposition to the creation of a tower in this neighborhood. The principal purpose of Fairbanks North Star Borough zoning regulations is to provide consistentcy and predictability in land use planning and development. The primary tenant in of the zoning regulations is the protection of private property rights. An applicant that seeks to deviate from the zoning regulations, and impose a use inconsistent with the character of the surrounding neighborhood, bears the burden of proving that the Conditional Use is necessary; not convenient or desirable, necessary. The applicant for this tower bears the burden of proving that for valid technological reasons there are no alternative locations or technologies available other than from the location the Conditional Use Permit is requested. The applicant bears the burden of proving necessity; convenience and cost are not factors that justify a Conditional Use Permit. The fact that, if denied a Conditional Use Permit, the company might have to use a higher grade or more expensive transmitter to broadcast a further distance, or pay a fee to co-locate on an existing tower elsewhere, or spend additional money to prepare unsuitable soils to use a different location are not justification for granting a Conditional Use Permit to locate a cell tower in a residential neighborhood. The only reason for a company to seek a Conditional Use Permit is for its own financial gain, the ability to compete in an expansive cell phone and internet market. The Conditional Use Permit has nothing to do with the community’s’ health, welfare, or safety. It is disingenuous for the applicant to assert otherwise; everyone in the area already has cell or internet service. Corporate interests or financial gain should never be a justification for deviating from zoning regulations by imposing a burden on those residents who relied on the zoning regulation when they invested hundreds of thousands of dollars in building residences. The applicant has failed to meet their burden of proving, through empirical data and analysis, that there are no other alternative technologies or locations that can meet this need. I respectfully request that the Planning Commission deny the Conditional Use application.


Paul Schneider, affected property owner, spoke in opposition of the Conditional Use Permit and posited that AWN has failed to meet its required burden of proving, through empirical data and analysis, that there are no alternative, non-residential locations or other technological solutions that could meet its needs. The applicant does not adequately address or support the following 7 criteria: First, why the service was necessary at all, since communication coverage maps show that the proposed coverage area is already adequately served; Second, why the tower must be located within ½ mile of AWN’s design point and within a residential area, Third, why alternative non-residential locations or existing towers are not suitable, Fourth, why they cannot upgrade equipment on existing towers to reach the service area, Fifth, why they cannot use multiple shorter towers that have less visual impact, Sixth, why they cannot co-locate on a power pole, and Seventh, how their visual impact analysis leads to the conclusion that there is not significant visual impact. Locating a tower in this residential neighborhood negatively changes the woodland character, degrades the quality of life for its residents, and diminishes surrounding property values. The neighborhood has maintained its woodland character for the last 50 years because of the adherence to the long standing Borough residential ordinances. Constructing this tower will also diminish property values of the Taiga Woodlands Subdivision which is less than 1,000 feet away, which was designed 21 years ago to preserve the woodland character of the area in accordance with Borough cluster development regulations. The homes were built in one tract of land, utilities were buried, and a permanent 70 acre greenspace was established inside its boundaries. The applicant has failed to meet the burden of proof for this application. The Planning Commission holds the authority to reasonably control industrial development. Your decision to approve or deny the Conditional Use Permit is also a decision to preserve or destroy the character of these long established residential neighborhoods. We respectfully request that you deny the Conditional Use Permit. Shelly Fritts, affected property owner, spoke in opposition of the Conditional Use Permit and explained that the composite photo about to be viewed represented the cell tower as it would appear in its intended location. The photos were taken by Paul McCarthy, a professional photographer that resides in Taiga Woodlands. They show a realistic view of what people would see as they travel through the local road and trail system. Wolverine Lane is a major pathway used by residents as they travel to the Skarland Trail System. The tower image used was from the Musher’s Hall existing tower but was scaled for size difference when creating the composite. The composite photos showed the potential view of the tower from several locations in the neighborhood. The photos submitted by the applicant are deceptive; the trees in this location are 60-65 feet tall and the tower is 120 feet, twice as tall as the surrounding vegetation. There is no way to disguise that; the idea of painting the tower brown would make it more visible because there is nothing around it that is brown; the surrounding trees are evergreen, birch, and aspen. Regarding the applicants plan for landscaping, the trees will not get tall enough to shield the tower within our lifetime. One of the applicants’ photos had the tower incorrectly placed on the opposite side of the road. The timber cut down to access the site removed any visual shield from the road. It would be nearly impossible to buffer the visual impact of the tower and facilities based on the plan included in the application. The visual impact of the tower is profound, and different from the photos submitted by the applicant. Some of the photos they had taken were from the bottom of a ditch looking straight up, not a normal street view. The applicant has failed to capture the true visual impact this tower has as required by zoning code and the application process, therefore has failed to meet the burden of proof required. We urge you to deny the Conditional Use Permit.


John Morack, affected property owner, spoke in opposition of the Conditional Use Permit and expressed that the applicant has given inadequate documentation. Coverage maps show that GCI and other carriers offer voice and data coverage in the proposed area. The residents in this area have good service; voice and data coverage from AT&T and GCI are provided by the towers on College Road and similar service from Verizon provided from the towers near the Dog Musher’s Hall. If there is an area that is not adequately served it should be documented by actual data; information on the number of actual customer complaints, the number of people affected, and a map showing actual measured cell tower signals. Fairbanks North Star Borough Code 18.50.155 states “the permit should not be issued in a residential neighborhood unless the area cannot be adequately served by a facility placed in a non-residential area for valid technical reasons”; according to 18.06 Definitions “adequate” means sufficient and/or satisfactory in terms of public health and safety requirements. Adequate, in this circumstance, means having the capability to place a 911 call. This capability is already provided by three carriers. The area is already adequately served by Borough definition so there is no justification to place a tower in a residential area. The ½ mile radius around the design point encompasses only residential land; by choosing this design point they have precluded the possibility of placing the tower in a non-residential area or co-locating on another tower. There is no technical justification in the application for the necessity of this design point. Borough code clarifies that cost is not a technical reason for justifying a tower location. This requires the industry to find ways to avoid erecting towers in residential areas, even if it costs more. There is no indication that the applicant investigated the use of better technology, multiple smaller towers to accomplish the same goal, or that they cannot get the required coverage from outside the ½ mile design point radius. There are obvious alternative locations within a mile of the design point labeled A through F on the overhead map; A is an existing cell tower located on NRA Lane, none of the other properties are zoned residential. There are other solutions to increasing coverage than putting a tower in a residential area. Molly Proue, affected property owner, spoke in opposition of the Conditional Use Permit and expressed concern regarding the loss in property value. There is a case study from Long Island that cites property value reduction between 4-10%. Using the lowest value and applying a 4% reduction in property value would result in an overall loss of $334,000 to this neighborhood, while applying a 10% reduction would result in a $837,000 overall loss. Joe Russo, Russo Realty, stated that in addition to a decrease in property value, owners would also have a smaller pool of potential buyers when trying to resell. Bob Carlson, affected property owner, spoke in opposition of the Conditional Use Permit. He expressed interest in considering visual and safety analyses of the support facilities, referring to the image of a lattice tower on Miller Hill, noting the number of buildings at the base. This tower has three carriers co-located on the tower; at its base are three sets of buildings, all of which are surrounded by a chain link fence. This would be very hard to screen with vegetation. Given the commercial/industrial nature of the site it is fair to ask what materials are stored on site. The fire safety diamond sign warns responders that materials on site have a flash point between 100-200F, ignites at 572F, and will build up to 900F. There are wildfires in this area. The yellow sign indicates the instability of the material on site. FCC has rules about bringing up the frequency hazard, however, at this site FCC posted a sign warning of the potential hazard. “beyond this point radio frequency fields at this site may exceed FCC rules for human exposure”. That exposure doesn’t stop at the other side of the fence. This is a industrial operation and doesn’t fit a residential neighborhood. I request that the Planning Commission deny the application.


Kate Wilson, affected property owner, spoke in opposition of the Conditional Use Permit. Neighborhoods are defined by its inhabitants; residents of this subdivision take pride in maintaining a quiet woodland setting and oppose the imposition of a visual blight of the proposed tower. 5 members, including myself, approached 74 property owners door to door with the petition presented; 13 did not answer the door, 4 declined to sign. Out of a total of 61 properties, 57 are in opposition to the proposed tower for a variety of reasons already stated tonight. The applicant has failed to meet the burden of proof through empirical data and analysis that there are no alternative locations. On behalf of the residents that signed the petition we respectfully request that the Planning Commission deny the Conditional Use Permit. Tom Hallinan, affected property owner, spoke in opposition of the Conditional Use Permit. He explained that his household uses two different cellular carriers, GCI and ACS, has a hardline phone and cable is available for purchase. He expressed opposition to the Conditional Use Permit and setback requirements waiver. There was no reason given for the setback variance request, which shows contempt for Borough zoning and the concerns of the neighbors. We were the first house on Wolverine Lane in 1965; no neighbors, electrical power, or telephone. The whole area had already been subdivided and neighbors were inevitable; however, Borough zoning would restrict the neighborhood to low density residential. We are grateful that the zoning laws have been upheld for the past 50 years. Now a single owner has offered to lease property to a profit seeking corporation. The greatest objections are the visual impact of the tower, fenced in enclosure, and the views that have been previously expressed by neighbors. Nancy Hallinan, affected property owner, spoke in opposition of the Conditional Use Permit. Neighbors in this area have been meeting for months to defend the area from the invasion of AWN. Reading from a “Dear Neighbor” letter sent by Bryan Maracle, AWN, “the lack of the highest quality cellular service has a direct impact on 112 wireless subscribers in the immediate area”. The Fairbanks North Star Borough does not require the highest quality of cellular service. There are 3 carriers that provide service in this area, we all have cell phones. She related that she was able to call 911 in an emergency from her basement in 2011. This is not needed in regard to health or welfare, and the ability to stream movies is not necessary for safety. In a February 13th communication to the Fairbanks North Star Borough Department of Community Planning Bryan Maracle stated that the mission of AWN was “to create value for customers, opportunity for employees, and growth for shareholders”; the goals of a commercial corporation. The proposed tower and support buildings are a commercial facility and not compatible with Rural Estates 4 (RE-4) zoning. I request that you deny the request for a Conditional Use Permit and protect the Rural Estates 4 (RE-4) zone. Judy Morack, affected property owner, spoke in opposition of the Conditional Use Permit request. She explained that her house was less than 400 feet from the construction site and the tower would block her view of the Alaska Range and the Murphy Dome Hills where the sun sets every evening. She moved in and chose to live in Rural Estates purposefully, the land offer beautiful views of the mountains, Northern Lights, and sunsets. I can see Denali from my living room and deck; photos would be ruined with a tower. She expressed concern regarding lowering of property values and the potential to attract local kids on snow machines and 4-wheelers to smoke pot, cigarettes, and drink alcohol like they do at the other end of the trail where the KUAC tower was located. A fire in the summer would flash up their driveway and outbuildings and the University Fire Department would not arrive in time. 911 calls work from this location. She opined that AWN should play fair with the people of Fairbanks and not enter quiet, long established neighborhoods. She suggested that AWN do outreach to the community in the future to locate areas that would impact property owners less and requested the Planning Commission deny the request.


William Long, affected property owner, spoke in opposition of the Conditional Use Permit request stating that AWN has deceived the neighborhood twice. The letter from Bryan Maracle stated concern for the 112 individuals without fast coverage; he retorted if AWN was really concerned they could have installed a tower and not charge for the service. Companies are in business to make money. The decision should not be based on a commercial interest; it should be based on the affected individuals want; we do not want a cell tower. Bill Stringer, affected property owner, spoke in opposition of the Conditional Use Permit. This cell tower would serve my location. However, I do not need or want it for several reasons. The area was designed as a Rural Residential area nearly 60 years ago. Many of the property owners present built house 45-50 years ago and have lived in this location since. We were so concerned about our quality of life that we started zoning in Fairbanks; we were the first area zoned outside the City of Fairbanks proper, and one of the first to create a service area. We have not sought to subdivide the large lots, and owners who sold lots found buyers compatible with the neighborhood values. This is a quiet residential area; cell towers are industrial, one of the things we sought to avoid. I request that the Planning Commission deny the request. Ross Adkins, affected property owner, spoke in opposition of the Conditional Use Permit. We owned the proposed lot before the present owner. A realtor blind approached them to determine if they would sell the property. They were told that the person interested in purchasing it was a longtime Fairbanks resident looking for property to build a family residence; the house was never built. He will probably profit more than he paid for that lot from the sale of this 30X30 section. Based on my own lengthy construction experience, this lot is conveniently located to minimize construction costs; a road within 50 feet as well as power lines within 50-60 feet. It appears that this lot was chosen for low construction costs. We request that you deny the application. Owen Guthrie, owner, offered that he was born in this neighborhood and has seen a lot of changes over the years. He expressed care for the community and aesthetics; when approached by AWN we proceeded cautiously and considered the offer a great deal. We have owned the property for 14 years and it has remained undeveloped. We like the woodland character and aesthetics. For us, the decision came down to the need for services verses aesthetics. We have been working with AWN to alleviate the effects as much as possible. This tower is a much better option than a permanent home with a 2-3 car garage and associated activity; no lights, dogs, or traffic. The remainder of the 5 acre parcel remains woodland habitat. Unlike a house, the utility pole is temporary. He explained that he works in technology and education and connectivity issues are prevalent in this area. Taiga Woods and University Heights do have GCI cable; however, the rest of this area does not. This tower would serve the north side of Ballaine Hill and Goldstream area. Communication and connectivity are key to healthy growing communities; home internet speeds come up in conversations more often than heating sources and energy costs. Wired internet services are not getting better in this area. Data coverage specifically, children cannot do homework without data coverage. More neighborhoods are going to be faced with retrofitting. Towers and poles will need to go somewhere. This utility pole, high on a hill in a neighborhood with large wooded parcels, causes the least disruption impacting the least possible people and provides essential services to the greatest number of Fairbanks residents.


Amanda Copus, owner, thanked the Planning Commission for the forum and the residents for their testimony. All concerns have been addressed by AWN and so they chose to move forward. As a parent, with regard to education and safety issues, I cannot imagine life without decent internet access and cell phone signal. Bottom line, I will rely on the process. If all statutes and ordinances are met to the satisfaction of the Planning Commission then I am confident that this project will be carried out appropriately and will provide an essential service to an underserved section of the Fairbanks community.

Heather Best, affected property owner, spoke in opposition of the Conditional Use Permit. We were one of the initial households contacted by AWN to locate the tower in this area. We agreed that we did not want a tower. None of the residents would want a tower in their yard either. The owners of the only vacant lot in the whole neighborhood accepted the opportunity; they live within a ½ mile radius but it is not being erected in their back yard where it would directly affect them, it is being erected in our yards. The applicant is from out of town. A lot of people not directly affected by this tower have the profit, while those directly affected do not get a profit nor need the services it will provide. I request the Planning Commission deny the Conditional Use

Michael West, affected property owner, spoke in opposition of the Conditional Use Permit. We just moved into the neighborhood recently, specifically because of the nature of the neighborhood. Knowing the sentiments expressed by neighbors is very important to us. It is a tremendously safe environment where children ride bikes in the street. Tower sites on the tops of hills in the surrounding area are unsavory places at times; burned mattresses, broken televisions, beer cans, and such. There is no reason to think that this site will not evolve the same way. We tested data services prior to purchasing our home and ping times were consistently 100 milliseconds, data upload speeds were a few megabytes/second. I have no limitations and no concerns regarding coverage and encourage you to deny the request.

Jamie Hollingsworth, affected property owner, spoke in opposition of the Conditional Use Permit and expressed that he was unimpressed with the quality of the letter sent by AWN, there were misspellings and inaccurate photos.

Elizabeth Nadine, affected property owner, spoke in opposition of the Conditional Use Permit. Expressed agreement with previous testimony; no one that lives in this neighborhood actually wants the tower located on their property, voice and data coverage are met, and there are safety concerns regarding children climbing the fence and entering the area. There is no need for service in this area; she suggested that in the future AWN talk to people before placing a pin in a map and locate that design radius in a location where people want and need the service they provide.

Pam Miller, affected resident, spoke in opposition of the Conditional Use Permit and explained that she lived on the property of one of the owners initially contacted by AWN for potential tower placement. She informed that she has broadband, landline phone, and cellular service through GCI. There was no information provided regarding how AWN would cover the Fairbanks area, how close the towers would need in the entire community in addition to the proposed tower. However, the primary issue is that alternatives to placement in a residential area were not considered. Information regarding how AWN decided to locate the design point was not provided, and is necessary in evaluating why a non-residential site was not used. She explained that she was considering becoming a homeowner in this neighborhood. Placement of a tower in a residential area would reduce the potential number available. The visual impact of a tall tower, even in this forested area, will be visible for a long distance. She chose this neighborhood for health and safety, to walk on trails, ski on Skarland Trail; I request the Planning Commission deny the Conditional Use.


Jeff Oatley, affected property owner, spoke in opposition of the Conditional Use Permit. Explained that he and his wife purchased their house 4 years prior; the woodland character was one of the main reasons for choosing this area. The neighborhood was well established, and the residents work hard to maintain the character. They were approached by AWN for potential tower placement and while we weren’t against receiving a check every month we did not want a cell tower in our yard. A tower would change the character of the neighborhood and zoning regulations exist for a reason. We are not asking for special considerations, just that you uphold the existing zoning regulations. Fairbanks North Star Borough Code 18.50.155 states that “A permit should not be issued in a residential neighborhood unless the area cannot be adequately served by a facility placed in a nonresidential area for valid technical reasons”. Service already exists in this location and AWN has acknowledged that there are technical alternatives but they are not as convenient. We ask that you uphold the existing Fairbanks North Star Borough Code. Hank Statscewich, affected property owner, spoke in opposition of the Conditional Use Permit and reiterated that there is good coverage in this area already. The 4G technology that AWN is planning to install is essentially obsolete. Cellular technology is rapidly changing; 5G is rapidly coming online in many countries. Within an estimated 15 years this 120 foot tower will be unneeded. 5G transmitters use a much higher frequency with faster bandwidths and will not be located on hilltops to serve a large coverage area. Considering that this proposed use will be obsolete in a few years there is no justification for disturbing a long standing residential neighborhood; I request the Planning Commission deny the Conditional Use. Lou Shapiro, affected property owner, spoke in opposition of the Conditional Use Permit. Informed that he owns 6.5 acres at the cul-de-sac and will never subdivide. 4G service is already available in this location. We have 3 different types of service in our household; DSL, cable television, and cellular service and when my wife had a heart attack I was on the cell phone while the ambulance came up the hill. The coverage is adequate there is no argument for providing service, it is already available. Mr. Miller countered that data including RF analysis was provided showing a significant gap in coverage. The application does show that there are no existing towers or non-residential lots that will allow AWN to provide service to that coverage gap. The testimony tonight confirms that there were no other owners willing to lease space, reducing the options to the single lot chosen. If this application is denied we will be prohibited from providing service to the area requiring coverage. We have worked hard with the community and land owner to minimize the visual impact as much as possible. One goal of our company is to provide the best and fastest service to our customers in Fairbanks. Over the past 12-18 months alone we have invested over $10 million dollars in the Fairbanks market; adding LTE to existing sites, co-locating, and building new towers where necessary. Mr. Maracle added that the specific frequency owned by AWN is a licensed frequency, restricted by Federal Regulations to operate within that frequency; using other frequencies is not an option. Other types of technologies are also not an option.

Mr. Billingsley inquired about the setbacks and requested additional information.


Mr. Maracle responded that in the Fairbanks North Star Borough Code the setbacks were not clear. The setbacks that we worked from were from the property line. The placement of the tower was designed to meet setbacks based on the property line and based on conversations we had with the Borough Planning staff trying to interpret the code correctly. It was after we filed the FAA, filed FCC, surveyed, and platted the lot that we learned the setback requirements were from the edge of the utility lot, or the edge of the building, or adjacent structures. The setback is designed from the edge of the tower to the edge of the property line; a total of 62 feet. The general consensus regarding visual impact was reducing the amount of area impacted; if we are leasing a 120 foot parcel that would increase the size, or visual impact that people would see.

Ms. Major noted there was consensus of concern regarding the location of the tower and requested a commentary on why that site on the property was chosen instead of an area that would have less of an impact on the neighbors.

Mr. Maracle replied the entire lot was sloping; if the tower were located further into the lot its height would have to be increased to compensate for the topography. The placement was based on topography and allowance for use of the land.

Mr. Whitaker mentioned that there was a comment regarding antennae being co-located on utility pole and queried if Mr. Maracle was aware of any and/or did AWN co-locate on utility poles.

Mr. Miller informed that they had mounted antennas on utility poles. Antennas are mounted lower to the ground on utility poles in areas where there is a dense population, designed for capacity. Antennas are designed higher on towers, in low density areas for long ranging coverage where distance covered is the purpose. Public Hearing Closed Ms. Nelson clarified that under the Telecommunications Act of 1996 47 U.S.C.S Section 332 (7) Preservation of Local Zoning Authority – “Except as provided in this paragraph, nothing in this act shall limit, or affect the authority of the state or local government, or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities”. The limitations do include, however, “the regulation and placement and modification of personal wireless service facilities by any state or local government thereof, shall not unreasonably discriminate amongst providers of functionally equivalent services”. Just because AT&T and Verizon serve this area does not mean that AWN cannot also build up their network. Also, “it shall not prohibit, or have the effect of prohibiting, the provision of personal wireless services”. In addition, “no state or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the commissions regulations concerning such emissions”. We cannot consider radio frequency emissions. MOTION Move to deny CU2015-003 with two (2) Findings of Fact by Ms. Major, seconded

by Mr. Whitaker. Discussion

Mr. Billingsley requested clarification; are we able to consider the fact that the area is serviced by other providers?


Ms. Nelson reread the limitation “local government shall not unreasonably discriminate amongst providers of functionally equivalent services”.

Mr. McBeath queried if we state that there is service in the area and there is no rationale for expansion of service, precluding another company from providing service to what is currently provided; would that violate the Telecommunications Act?

Ms. Klepaski answered yes, the Commission cannot state that because one company already provides service, that another cannot also provide the same service; no exclusivity of one company over the other. Mr. McBeath summarized that all companies were free to compete.

Ms. Major spoke in opposition of the Conditional Use Permit. There is a lot of discussion that needs to take place concerning Finding of Fact 1, minimizing the visual impact of the tower in this location. There are a significant number of property owners concerned with the visual impact; there seem to be differences in the visual impact presented. It is very telling that property owners contacted were vehemently against the placement of a tower on their own property.

Ms. Klepaski noted that approval criteria included “the Planning Commission shall approve, approve with Conditions, or deny a permit under this section after considering all of the following criteria” (c) the necessity for location in a residential neighborhood ”a permit should not be issued in a residential neighborhood unless the area cannot be adequately served by a facility placed in a non-residential area for valid technical reasons, conditions may be imposed to lessen the impact of a communications tower on a residential neighborhood including limitations on time for maintenance work to be performed, number of vehicles present, yard maintenance, and similar requirements.”

Mr. McBeath noted that a limitation on the height of a tower was not a limitation listed; there has been testimony regarding the height of the proposed tower and Borough Code does not address this issue.

Ms. Nelson countered that it does talk about visual impact; criteria 2(a) Location and Visual Impact – be placed in a reasonably available location that will minimize the visual impact on the surrounding area and allow the facility to function in accordance with the minimum standards imposed by the applicable communications regulations and the applicants technical design requirements. The applicant is required to show that this is the minimum that they need in this location, that they minimized the visual impact, and that it is necessary to locate in a residential zone; the last requirement is the criteria that staff feels has not been met.

Ms. Kellner added that the proposed height of a tower shall be the minimum required to meet the applicants’ technical needs and will consider the impact on the surrounding uses.

Mr. McBeath commented that the applicant can say they need 200 feet. Ms. Kellner noted that they were required to provide technical analysis that supports the request. Mr. McBeath queried if Ms. Kellner has received technical analysis from the applicant that they absolutely must have a 120-foot tower.


Ms. Kellner referred to the maps in the packet that compared the services with a tower located at various heights, the best service would be provided by a tower at 120 feet. Mr. Whitaker spoke in opposition of the Conditional Use Permit and commented that he was not convinced that the tower was “necessary” at this location. Also, there was doubt created regarding the accuracy of the photo simulations submitted. Finally, the placement of the tower in the view of the Morack’s residence, as demonstrated in testimony, was something he would not be comfortable doing. Ms. Nelson added that the applicant talked about the design ring, however, we never received a map. We do not know several things about the search ring; how many parcels were included, how many of those were vacant, how many parcel owners were contacted, and we don’t know the results of those contacts. This was all information that staff repeatedly told the applicant was needed in order to evaluate the request, which they failed to provide. Mr. Billingsley opined that the applicant met the application criteria; photo simulations and visual impact analysis. Testimony including photos that counter the photographs creates almost a battle of the experts’ situation. The applicant did meet the requirements by submitting photos, when public testimony refutes the evidence what are our options? To bring in experts and decide who is telling the truth? They at least satisfied the requirements for producing photos that show where the tower will be. It is up to the commission to decide whose testimony to believe. Regarding the criteria that the applicant is unable to locate on an existing structure, the applicant discussed the existing structures and whether they would satisfy the needs. There was a great deal of testimony regarding necessity; necessity has to be interpreted. Regarding alternatives, AWN said they found the target area, located properties within that area, provided analysis and how they chose the 5 lots, contacted owners for approval, most refused to have a tower on their lot; there was nowhere else they could locate the tower, the one non-residential lot refused to have a tower on their lot. If the tower is not located in your back yard it will be located in someone else’s. There will be 112 people served by the proposed tower, yet 61 owners signed a petition that they did not want the tower. The testimony was received from property owners who would be directly affected by the presence of the tower. However, there are a lot of other people affected by this proposition; those who commute along Ballaine Road and have dropped calls, those who live down the hill and did not get Dear Property Owner letters but still have an interest in the application. The proposed height was arguable, whether they required the full 120 feet or just 100 feet. Community Planning’s staff analysis was right on, the applicant does not need a setback waiver, they can place the tower in the middle of the property. Everyone in the audience has cell phones and they work off of towers located near someone else’s back yard, which affects them. He voiced dismay that AWN is being driven out by larger companies that can afford the lower frequencies that have better penetration. The tower would likely be temporary and would be required to be taken down if no longer used and would not be lit. It comes down to Health, Safety, and Welfare. There is such a great proportion of people against the tower that it would negatively affect the health and welfare to such a degree that I will vote to deny the application; however, the applicant did meet the application criteria. Ms. Banks spoke in opposition of the Conditional Use Permit based on the amount of testimony against the proposed tower and the negative impact emotional health of the residents and expressed thanks for the testimony presented. There are alternative non-residential locations for a tower to be placed.


Mr. McBeath spoke in opposition of the Conditional Use Permit and remarked that visual impact was up in the air at this point. The necessity to locate in a residential neighborhood remains unsettled. The applicant’s efforts to reduce visual impacts are inadequate. There was an analogous case several years ago in which the neighborhood was opposed to a tower location proposed in their area; the applicants had not done due diligence, after a more exhaustive analysis they found the Dog Musher’s Hall location. In this case it does not appear that the applicant has gone through the effort and they do not have information showing that they proceeded carefully. MOTION Move to amend the main motion deleting Finding number 1 by Mr. Billingsley No Second

MOTION FAILS ROLL CALL Nine (9) in Favor: Mr. Guinn, Mr. Whitaker, Mr. Peterson, Ms. Major, Mr. Reilly, Mr. Billingsley, Ms. Banks, Mr. Bringhurst, and Mr. McBeath Zero (0) Opposed:

MOTION APPROVED

MOTION Move to postpone the rest of agenda items to May 5, 2015 with the exception of

Closing Comments due to the late hour.

MOTION APPROVED WITHOUT OBJECTION OC2015-003 was postponed to May 5, 2015 Ms. Major relayed that she filled in for Mr. McBeath at an Assembly meeting and inquired if Ms. Nelson had already filled the commissioners in on the results. Ms. Nelson replied yes, she had reviewed the concerns of the Assembly with them at the last meeting. Ms. Major reiterated the Assembly request that they eliminate the 25% or less of the yard requirement. Ms. Klepaski pointed out a memo in the packet from the Borough Clerk that included the suggestions from the Assembly. Ms. Nelson relayed the bullet points of discussion; increase the setback variance request percentage to be considered under the Administrative process, increase notification of


surrounding property owners, and to exempt some older properties from requiring the variance process altogether. G. UNFINISHED BUSINESS

H. NEW BUSINESS Mr. McBeath requested the Budget update. Ms. Nelson relayed that Community Planning would present this Saturday. In order to make the requested budget cuts Community Planning was losing the Document Coordinator position; those duties were being absorbed into an existing position and that is preventing us from losing any vacant positions. We have reduced as much as possible at this point, although we did increase the overtime because we did not have sufficient budget for all of the night meetings we have. Training budget is the same to allow for some training. We are proposing almost doubling the fees for almost all of the Planning and Platting cases because the fee analysis shows that we are collecting pennies on the dollar; we are trying to recoup more of the cost. Many of the fees that we are trying to keep low benefit a larger portion of the public vs. rezones, conditional use, and plats which only benefit one person.

I. COMMISSIONER’S COMMENTS

1. FMATS

Mr. McBeath reported that at the April 1, 2015 FMATS they discussed project scoring and the McGrath Road upgrade project. There are 3 alternatives being considered; to leave it as it is, to leave a separated bike path, or to expand the road shoulders and get rid of the bike path. Please submit comments to Eric Bruner at 451-2286, DOT.

2. Other Commission Comments Mr. Whitaker appreciated the reminder to speak into the microphones. Mr. Guinn requested figures for the next meeting that show the additional costs the ordinance will add. Ms. Nelson responded that there were calculations as part of the fee analysis; public notice, Planning Commission meetings, and administrative hearing total costs. The figures constitute letters, mailings, notices, and staff time. Many jurisdictions have pushed decisions down to a staff level to cut cost. There has to be a balance between public involvement, where necessary, and the cost of doing that.

Mr. Peterson queried if the cases are brought down to staff levels, weren’t there more appeals. Ms. Nelson replied not necessarily; there will be an ordinance coming forward in the next few months regarding Grandfather Rights Hearings. Mr. Bringhurst announced that this would likely be his last Planning Commission meeting. I have accepted a job offer that will make it impossible to serve on this commission. I have served since December of 2012, the people here are wonderful, and the staff has always


been very professional. Thank you for this time I have learned so much about local government and may come back to serve in the future. Ms. Major expressed that regarding the Assembly hearing on the proposed administrative variance ordinance she was concerned that the direction would be cost prohibitive.

J. ADJOURNMENT There being no further business, the meeting was adjourned at 11:27p.m.

FAIRBANKS NORTH STAR BOROUGH PLANNING COMMISSIONco.fairbanks.ak.us/Boards/BoardCommissionMeeting... · Melissa Owen, owner, explained that they were taking the process one step at

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