TOWN OF MOUNT PLEASANT, SOUTH CAROLINA BOARD OF ZONING APPEALS JULY 30, 2012 MINUTES

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1 TOWN OF MOUNT PLEASANT, SOUTH CAROLINA BOARD OF ZONING APPEALS JULY 30, 2012 MINUTES Present: Bryson, Staff: Mason Smith, Chair, Charlie Moore, Sy Rosenthal, Jon Chalfie, Ben Don Gwinnup, Saila Milja-Smyly. Michael Robertson, Kent Prause, David Pagliarini, Lynnette Lynes Mr. Smith called the meeting to order at 6:01 p.m. and reviewed the procedures with the public on the various requests before the Board. A. Approval of Minutes Mr. Chalfie moved for approval of the minutes. Mr. Rosenthal seconded the motion. All in favor. B. Approval of Agenda Mr. Bryson moved to approve the agenda. Ms. Milja-Smyly seconded the motion. All in favor. C. Correspondence Mr. Smith administered the oath to those speaking. D. New Business 1. Case A-3-12, 0 Long Grove Drive, TMS ; Request for Rehearing Ms. Milja-Smyly stated that a conflict of interest has arisen since last heard and recused herself. Mr. Moore moved to convene to executive session at 6:13 p.m. to discuss legal matters. Mr. Rosenthal seconded the motion. All in favor. The Committee reconvened at 6:36 p.m. No action was taken while in executive session. Mr. Gwinnup moved to be permitted to participate in the rehearing process. Mr. Rosenthal seconded the motion. Motion failed on a 1 to 5 vote with Mr. Gwinnup in favor and Ms. Milja-Smyly abstaining. Mr. Robertson stated that Mr. Gwinnup would not participate in the rehearing as he was not present at the original hearing. He stated that on the advice of legal counsel, those not present at the original hearing would be able to participate in the rehearing proceedings. Mr. Robertson reviewed the staff comments as follows: Case A-3-12, 0 Long Grove Drive, was an appeal of the decision of the Zoning Administrator authorizing extensive amenities in the P-2 area of Seaside Farms which was heard by the Board on April 30, 2012.

2 Page 2 of 11 Present at the meeting were: Dr. Mason Smith, Ms. Saila Milja-Smyly, Mr. Jonathon Chalfie, Mr. Charles Moore, Mr. Seymour Rosenthal, and Mr. Ben Bryson The Board voted 4-2 to uphold the decision of the Zoning Administrator with Ms. Milja-Smyly and Mr. Rosenthal opposed. The adopted Bylaws at its regularly scheduled meeting on March 26, Section 9 of the Bylaws establishes standards for requesting a rehearing. Section 9 states The Board may grant a rehearing of an application which has been dismissed or denied upon written request filed with the secretary within fifteen (15) days after delivery of the order accompanied by new evidence which could not reasonably have been presented at the hearing, or evidence of a clerical error or mutual mistake of fact affecting the outcome. The order of the April 30, 2012, decision in Case A-3-12 was sent by Certified Mail Return Receipt Requested on May 22, 2012, and signed and received by Ms. Catherine McGinn on May 23, A request for rehearing was submitted by Ms. Catherine McGinn, Seaside Farms Single Family Homeowners Association Board of Directors, and received by the Secretary on June 6, Ms. McGinn s request for rehearing and the evidence proffered to support her position have been provided to the. The decision before the Board is whether or not the evidence supports the request to grant a rehearing. In making a determination, the Board should cite specific findings of fact and conclusions of law as with any other decision. If the Board determines that a rehearing is warranted, a specific date for the rehearing should be established. For instance, at the next regularly scheduled meeting (August 27, 2012). Mr. Prause clarified that of the Land Development Regualtions noted in Ms. McGinn s exhibit, page 38, the statute was amended in July 2002 and that there was a previous error in the code of ordinances and corrected in He agreed that the rehearing procedures should be adhered to. He noted that his opinion is that no new evidence has been submitted. Ms. Cathy McGinn, made a point of order that the rehearing procedures were not clearly outlined ahead of time, that the conflict of interest should be specifically stated, and that the voting procedures for those not in attendance at the original hearing should be adhered to as outlined in the bylaws. She reviewed her reason for requesting the rehearing with the Board. She called into question the validity of the final plat as it was not approved by the Planning Commission and a public hearing was not held. She concluded that contrary to Mr. Walker s statement, there was a requirement to have the property remain as a park. She asked that the rehearing be granted. Mr. Rosenthal asked if the matter would be appealed to the Circuit Court. Ms. McGinn answered in the affirmative, and stated that if granted a rehearing and the

3 Page 3 of 11 rehearing was in the applicant s favor, the appeal to the Circuit Court would be withdrawn. Mr. Rosenthal suggested that it would go to Circuit Court regardless of whether a rehearing was held or not. He asked if the rehearing would essentially be a moot point. Ms. McGinn answered in the negative and stated that the courts look to see if all legislative options have been exhausted. She stated that the appeal went forward due to time constraints. Mr. Chalfie asked what facts would be considered new evidence that could not be presented at the hearing. Ms. McGinn answered that the search of the preliminary and final plat public hearings were held and the information was not provided and should have been provided by planning staff. She stated that the recording of the development agreement refers to the original code that it would be approved by the Planning Commission, which they did not. Mr. Prause stated that the portion of the development agreement that Ms. McGinn refers to was put in place in This was amended by a subsequent ordinance, #97001 and was in effect at the time the development agreement was established and in effect and is the controlling feature. He stated that there was an oversight in being amended along with and was subsequently corrected in He stated that the Planning Director or its designee has approval authority. He stated that the preliminary plat does not require a public hearing, but they are noticed and can be appealed if anyone is aggrieved. Ms. McGinn noted that the development agreement is the controlling document and in exhibit 10.2 it shows the controlling document. Mr. Morre asked what a mutual misstatemen of fact would be. Mr. Pagliarini answered that it would be a fact that the Board relied upon as well as the applicant and that all parties relied on that was incorrect. Mr. Moore asked if a rehearing was warranted, the Board would have to rely on new evidence that could not be presented at the time of a clerical error. He suggested that there is not any evidence that could not have been presented at the previous hearing. Mr. Rosenthal disagreed and suggested that there were enough clerical errors, and misinformation that justifies a rehearing. He stated that a legal review was never done and this was his initial concern during the hearing. Mr. Rosenthal moved to approve the request based on the fact of Ms. McGinn s comments and included in her letter requesting the rehearing and that there was sufficient misinformation and clerical errors to warrant a rehearing. Mr. Chalfie seconded the motion. Mr. Moore suggested that there was no slight of hand or misrepresentation and that the information was available for the original hearing. He suggested that there were no clerical errors that would affect the outcome and there was no mutual misstatement of fact. He suggested that this is already appealed to the Circuit Court and there is no substantiation for a rehearing. Mr. Chalfie suggested that the motion should be clarified that this is to vote on

4 Page 4 of 11 whether to grant a rehearing. Mr. Rosenthal suggested that the statements in Ms. McGinn s letter was very cogent and clear. He suggested that regardless of the outcome of this motion, the appeal still stands in Circuit Court. Mr. Smith called for a vote on the motion. Motion failed on a 1 to 4 vote with Mr. Rosenthal in favor, and Mr. Gwinnup and Ms. Milja-Smyly abstaining. 2. Case S Lowcountry Blvd., TMS ; Request for a special exception for a proposed 170 ft. monopole-style wireless communications facility designed for use by five (5) telecommunications carriers. Mr. Robertson reviewed staff comments as follows: The property is zoned AB-2; Areawide Business-2 The proposed tower will be located on property owned by Mr. Bradford P. Law which currently is used as an automotive repair facility. The applicant wishes to construct a 170 tall monopole for use by up to five telecommunication carriers. Section Special Exceptions states Telecommunications towers in the AB, Areawide Business District, and AB-2, Areawide Business-2 District are allowed as special exception, subject to the provisions of (A)(3) and the following provisions: (1) The applicant must meet the requirements of above. See below (2) Monopole or stealth application are preferred over lattice towers. The applicant has proposed a monopole application. (C) In addition to satisfying the approval criteria listed herein, the must find that the design, location and height of the proposed tower will not substantially impact the aesthetic and residential character of adjoining areas zoned residential, and intended to remain such pursuant to adopted land use plans. The applicant has provided photo simulations from nearby residential areas to illustrate the view of the tower in Exhibit Conditional Use states: (A) The applicant must provide written verification that no feasible alternative exists to the construction of a new tower, such as collocation on an existing tower or structure. Written justification is provided by Mr. Keith Powell, Optima Towers, in Exhibit 5 of the applicant s submittal. (B) The tower owner must provide written agreement acknowledging that additional providers may collocate on the new tower at the prevailing market rate, subject to the engineering capabilities of the structure. Written justification is provided by Mr. Keith Powell, Optima Towers, in Exhibit 6 of the applicant s submittal. (C) The minimum setback from the center of the tower to an adjacent residentially is equal to the height of the tower, measured to the

5 Page 5 of 11 nearest property line. The applicant indicates, and staff has verified, that the tower is not within 170 of any residentially zoned properties in the cover letter of the submittal. (D) The minimum setback from the center of the tower to all other adjacent nonresidentially zoned property or street right-of-way is determined by the fall zone, such that in the event of failure the fall zone shall prevent the tower from encroaching onto adjoining properties of street rights-of-way. The applicant has indicated the fall zone in Exhibit 1 of the application. (E) In all cases the fall zone must remain inside the lot lines of the property on which the tower is located. The applicant has indicated on page 2 of the cover letter that the tower s fall zone is within the lot lines of the property. Further, a Fall Zone letter of S.C. Professional Engineer Michael F. Plahovinsak has been provided in Exhibit 2 of the application Additional Provisions states: (A) Location, collocation and construction of new towers require the issuance of a building permit demonstrating adherence to all applicable building code requirements, including wind load and seismic requirements. Please see the applicant s response to this item on page 3 of the cover letter. (B) Towers no longer used for communication purposes must be dismantled and removed within 120 days of the date they are taken out of service. Please see the applicant s response to this item on page 3 of the cover letter. (C) No advertising signage may be placed on any tower. Please see the applicant s response to this item on page 3 of the cover letter. (D) Illumination is only allowed in accordance with the requirements of the FCC, FAA or other appropriate regulatory agencies. Please see the applicant s response to this item on page 3 of the cover letter. (E) It is preferred that the color of the tower blend with its surroundings Please see the applicant s response to this item on page 3 of the cover letter. (F) The tower and associated structures are appropriately secured by means of walls, fences (other than chain link material) or other devices, and are appropriately screened using existing new evergreens shrubs and trees that will reach a minimum height of six feet. Please see the applicant s response to this item on page 4 of the cover letter. (G) The use of COWs and CALFs are allowed in any zoning district as follows: o With a special event permit pursuant to the provisions of Chapter 116 for special events. o For a period not to exceed 120 days following a natural disaster or local emergency declared by a competent official authority. o On location by broadcast media on a short-term basis covering an event or story for the same duration. Please see the applicant s response to this item on page 4 of the

6 Page 6 of 11 cover letter. (H) Application requirements: o Copy of lease or letter of authorization from the property owner authorizing application. Authorization by the property owner, Bradford P. Law, is provided in Exhibit 3. (2) Written description and scaled drawings, in plan and elevation view, of the proposed tower structure, antennas, ground structure, landscape or bufferyard plantings and fence plan. The applicant has stated the information is provided in Exhibit 1 of the submittal. (3) Graphic representation of the tower s fall zone and certification letter from a State of South Carolina-licensed, professional engineer, bearing original signature and seal. The applicant has indicated that the fall zone can be found on Sheet Z02 of Exhibit 1 and the certification letter in Exhibit 2. (4) Line-of-sight diagram or photo simulation, showing the proposed tower against the skyline, and viewed from at least four different directions from within the surrounding area. The applicant has indicated that these items are included in Exhibit 4 of the submittal. (5) Written justification why location on an existing building or structure or collocation on an existing tower without extension is not feasible, to include: Such technical information an dother justifications as are necessary to document why location or collocation is not viable. A list of all existing structures considered as alternatives to the proposed location, and an explanation of why the alternatives were unacceptable due to technical, physical, or financial reasons. The applicant has provided a written justification in Exhibit 5 of the submittal application. (6) A written agreement acknowledging that additional providers may collocate on the new tower at the prevailing market rate, subject to the engineering capabilities of the structure. The applicant has provided written acknowledgement in Exhibit 6 of the application submittal Powers; Variances; Special Exceptions; Stays; Hearings, Decisions and Orders (A)(3) states To permit uses by special exception, subject to such uses being so designated in the use district regulations of this chapter, and to the following specific terms and conditions: (a) Adequate provision is made for such items as setbacks, fences, and buffered or planting strips to protect adjacent properties from the possible adverse influence of the proposed use, such as noise, vibration, dust, glare, odor, traffic congestion, and similar factors. Ple ase see the applicant s response to this item on page 5 of the cover letter. Staff would note that the project will be subject to Commercial Design Review for site and landscape. A simple wooden stockade fence is shown. Design Review generally requires a wood fence with

7 Page 7 of 11 brick column supports as was the case with previous cell tower extension approvals and should be incorporated in this instance as well. (b) Vehicular traffic and pedestrian movement on adjacent roads shall not be hindered or endangered. Please see the applicant s response to this item on page 6 of the cover letter. The structure should have no adverse impact on vehicular or pedestrian traffic as proposed. (c) Off-street parking and loading areas and the entrance, and exits of these areas, shall be adequate in terms of location, amount, design, and construction to serve the proposed use. Please see the applicant s response to this item on page 6 of the cover letter. (d) The proposed use shall be compatible with existing uses to the extent that such use will not adversely affect the level of property values, general character or general welfare of the nearby area. Plea se see the applicant s response to this item on page 6 of the cover letter. (e) In approving a special exception, the Board may attach to it such reasonable terms and conditions as it may consider necessary to accomplish the intent of this section and this entire zoning chapter. Mr. Robertson stated that the staff comments mirror the applicant s response and suggested that in order to save time, they not be read for the record. He noted that the facility would have to go through the DRB process and a fence with brick columns and wood infill would be required. Ms. Milja-Smyly suggested that some of the public might not have had an opportunity to review the staff comments and suggested that they be read for the record. Mr. Smith asked that the staff comments be read. Mr. Robertson read staff comments for the record. Mr. Rosenthal asked for clarification of which section pertains to the special exception. Mr. Robertson answered that this was a clerical error and should be not Mr. Jonathan Yates and Mr. Keith Powell, and Brad Law (owner), reviewed the request with the Board. Mr. Powell reviewed the photos of where the tower would be located and views of tower with the Board. Mr. Yates stated that they would adhere to the DRB approval guidelines in regard to the fence. He stated that there would be additional landscaping installed on this site. Mr. Fred Drulard, 290 Isaw Drive, stated that the cell phone coverage is not where it should be and that a well-placed tower that would not be obtrusive should be approved.

8 Page 8 of 11 Mr. Smith closed the public hearing. Mr. Moore asked if there was adequate public notice on this application. Mr. Robertson answered in the affirmative and stated that 15 days notice is required and the property must be posted as well. In addition, he stated that the agenda is posted on the website. Mr. Moore asked how a 170 foot tower falls on a 30 foot radius. Mr. Yates answered that the top 30 feet collapses on itself. Mr. Chalfie asked if this was the exterior elevation of the fence and that it would be less aesthetically pleasing and should be located on the interior. Ms. Milja-Smyly asked about the future co-locations and if the requirements would be acceptable for staff. Mr. Robertson answered in the affirmative. Ms. Milja-Smyly asked how many future carriers would be. Mr. Yates answered in the negative and stated that there is room for a total of five carriers. Mr. Rosenthal agreed that it appears to be the best location for a tower. Mr. Gwinnup asked if there is a vacant tower across from this location on Johnnie Dodds. Mr. Powell answered that he is not aware of any. Mr. Yates stated that if vacant it is required to be removed. Mr. Rosenthal moved for approval as the request meets all of the criteria outlined in Mr. Moore seconded the motion. All in favor. The Board convened for a short break at 7:47 p.m. and reconvened at 7:51 p.m. 3. Case V-3-12, 1740 West Canning St., TMS ; Request for a variance from the strict interpretation of (C)(2) to allow the removal of a 26 oak tree. Mr. Robertson reviewed staff comments as follows: Please see applicant s submittal for justification of the relief sought. The property is Zoned PD through the Dunes West/Park West Planned Development and R-3 within the PD. The applicant requests to remove a 26 oak from the property. Section (C)(2) states Removal of historic tree(s) on lots approved and recorded after April 1, 2000, shall require a variance from the Powers; Variances; Special Exceptions; Stays; Hearings, Decisions and Orders (2) states [the Board has the following powers] To hear and decide appeals for variance from the requirements of the zoning ordinance when strict application of the provisions of the ordinance would result in unnecessary hardship. A variance may be granted in an individual case of unnecessary hardship, if the Board makes and explains, in writing the following findings: (a) There are extraordinary and exceptional circumstances pertaining to the particular piece of property; The property and its circumstances are similar to those of another recent decision by the Board of Zoning

9 Page 9 of 11 Appeals, Case V-1-12 where a tree was located in the buildable area of the lot and Case V-2-11 which was a request to remove an historic tree in order to construct a garage. (b) These conditions do not generally apply to other properties in the vicinity. The applicant did not address this item on the application. This condition is fairly common throughout the Town as seen in previous approvals and within the neighborhood as demonstrated by photographs showing neighboring properties. Further, the house plan shown is not in keeping with the adjacent homes. The adjacent homes do not generally have garages in front of the house. The homes with garages are accessed from the rear or side of the house. (c) Because of these conditions, the application of the ordinance to the particular piece of property would effectively prohibit or unreasonably restrict the utilization of the property; The BOZA noted in the V-2-12 discussion that the utilization of the property is for a residential structure which could be located on the property and that a garage was not necessarily a requirement for a house but an accessory structure and therefore, not an unreasonable restriction. Further, the application notes that the neighborhood ARB requires side loaded garages. The neighborhood ARB and the covenants and restrictions are private, contractual matters and not a requirement or function of the zoning code. The ARB can grant relief from its standards, not the Board of Zoning Adjustment. It is the application of the ARB guidelines not the Town of Mount Pleasant Code of Ordinances that creates the hardship in this instance. (d) Authorization of a variance will not be of substantial detriment to adjacent property or to the public good, and the character of the district will not be harmed by the granting of the variance for the following reasons: The applicant did address this requirement in the application. Photographs have been included in the staff report to illustrate the surrounding neighborhood. Mr. Chris Ware, applicant, stated that different locations have been suggested in order to avoid the tree, but cannot be done. Ms. Milja-Smyly asked when the lot was purchased and platted. Mr. Ware answered that it was recently purchased. Ms. Milja-Smyly asked if the tree would have required a variance at the time of purchase. Mr. John Belton, (lot 71) stated that a 28 in oak is not shown on the plat and is one of the best looking trees in the neighborhood. He submitted a copy of the plat showing the encroachment onto the 28 in oak he is referring to. Mr. Smith asked about this tree. Mr. Robertson answered that it is not shown on the site plan and if they would like to remove the tree, they would have to seek approval and come back to the Board for a variance since it is a historic tree. Mr. Belton stated that he has been caring for the 28 inch oak. He suggested that the plan as proposed would not be

10 Page 10 of 11 Ms. Alisa Stanfield, 1756 West Canning, agrees with Mr. Belton in regard to his statements. She stated that the tree should not be removed and that the site plan is not consistent with the neighborhood. Mr. Ware suggested that this was an oversight of the surveyor. Mr. Gwinnup suggested that it was not a buildable lot. Mr. Moore moved to deny the request as the criteria for a variance has not been met as the conditions are not extraordinary to this lot, the property can be reasonably utilized, there is public detriment as evidenced with the public comment. Mr. Rosenthal seconded the motion. All in favor. 4. Case V-4-12, 1508 Capel St., TMS ; Request for a variance from the strict interpretation of (C)(2) to allow the removal of a 25 oak tree. Mr. Robertson reviewed staff comments as follows: Please see applicant s submittal for justification of the relief sought. The property is Zoned PD through the Dunes West/Park West Planned Development and R-3 within the PD. The applicant requests to remove a 26 oak from the property. Section (C)(2) states Removal of historic tree(s) on lots approved and recorded after April 1, 2000, shall require a variance from the Powers; Variances; Special Exceptions; Stays; Hearings, Decisions and Orders (2) states [the Board has the following powers] To hear and decide appeals for variance from the requirements of the zoning ordinance when strict application of the provisions of the ordinance would result in unnecessary hardship. A variance may be granted in an individual case of unnecessary hardship, if the Board makes and explains, in writing the following findings: (a) There are extraordinary and exceptional circumstances pertaining to the particular piece of property; The property and its circumstances are similar to those of other recent decisions by the, Case V-1-12 where a tree was located in the buildable area of the lot and Case V-2-11 which was a request to remove an historic tree in order to construct a garage. (b) These conditions do not generally apply to other properties in the vicinity. The applicant did not address this item on the application. This condition is fairly common throughout the Town as seen in previous approvals and within the neighborhood as demonstrated by photographs showing neighboring properties. Further, the house plan shown is not in keeping with the adjacent homes. The adjacent homes do not generally have garages in front of the house. The homes with garages are accessed from the rear or side of the house. (c) Because of these conditions, the application of the ordinance to the

11 Page 11 of 11 particular piece of property would effectively prohibit or unreasonably restrict the utilization of the property; The BOZA noted in the V-2-12 discussion that the utilization of the property is for a residential structure which could be located on the property and that a garage was not necessarily a requirement for a house but an accessory structure and therefore, not an unreasonable restriction. Further, the application notes that the neighborhood ARB requires side loaded garages. The neighborhood ARB and the covenants and restrictions are private, contractual matters and not a requirement or function of the zoning code. The ARB can grant relief from its standards, not the Board of Zoning Adjustment. It is the application of the ARB guidelines not the Town of Mount Pleasant Code of Ordinances that creates the hardship in this instance. (d) Authorization of a variance will not be of substantial detriment to adjacent property or to the public good, and the character of the district will not be harmed by the granting of the variance for the following reasons: The applicant did address this requirement in the application. Photographs have been included in the staff report to illustrate the surrounding neighborhood. Mr. Robertson reviewed the photos with the Board. Mr. Chris Ware stated that they have tried several configurations in order to avoid the trees, but have not been able to do so. Ms. Milja-Smyly asked when the lot was purchased and if the trees were on the lot at that time. Mr. Ware answered that the trees were on lot at the time of purchase. Ms. Milja-Smyly stated that this essentially is a self-imposed hardship. Ms. Alisa Stanfield, 1756 West Canning, stated that she is opposed to the request. Mr. Rosenthal moved for denial of the request as it does not meeting the criteria for a variance as outlined in Mr. Bryson seconded the motion. All in favor. F. Approval of Final Orders The Board signed orders for case #V There being no further business, the meeting adjourned at 8:21 p.m. Submitted by, L. Lynes BOZA