To: Board of County Commissioners
Through: Bryan Weimer, Director, Public Works & Development
Prepared By:
prepared
Jason Reynolds, Planning Division Manager, PWD
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presenter
Presenter: Jason Reynolds, Planning Division Manager, PWD
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Subject:
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Appeal for Lakeview Park Concealed Telecommunication Facility and Equipment Compound (CMRS21-001)
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Purpose and Request:
recommended action
Crown Castle proposes installing a 65-foot-tall cellular facility in Lakeview Park, located at 11700 E. Orchard Road. The proposed facility includes a new ground-based equipment shelter and an antenna support structure designed to resemble an evergreen tree. On March 25, 2024, the Planning Division Manager approved the proposed Lakeview Park Commercial Mobile Radio Service (CMRS) application, finding that it meets the review and approval criteria for CMRS facilities. Per 5-3.8.A.1.e.i of the Land Development Code, the Planning Division Manager’s decision may be appealed by a citizen or citizen group if submitted within 10 working days of the Planning Division Manager’s decision. On April 8, 2024, which is within 10 working days of the decision, PWD received an appeal letter signed by 276 residents. On April 29, 2024, the Board of County Commissioners directed staff to schedule an appeal for Board consideration. After considering the evidence in case CMRS21-001, the Board may affirm or reverse the staff determination.
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Background and Discussion: Crown Castle submitted a CMRS application for a site within Lakeview Park, which is owned by the Cherry Creek Vista Park and Recreation District. The application, CMRS21-001, was accepted for review by Arapahoe County on March 23, 2021. Crown Castle conducted a required neighborhood meeting on June 1, 2022, and mailed the required outside referral packet to nearby residents on December 20, 2023. Staff created a web-based public comment page for the proposal between December 20, 2023, and January 16, 2024. The attached approval letter dated March 25, 2024, provides additional background for this application, including a summary of how the proposal meets the standards found in the Land Development Code. The attached appeal letter summarizes the nearby residents’ objections to the approval. In addition to those documents, the attached administrative record includes the CMRS site plan application (and design iterations on later submittals), neighborhood meeting materials, public notice materials, public comments, correspondence, the Location & Extent plans, and applicable code provisions.
As an appeal to an administrative decision with specific review criteria, those criteria form the foundation for either approval or denial of the application. As provided in the Land Development Code, the appeal “shall be based on the administrative record, ...” (Section 5-3.8.A.1.e). The staff approval letter cites relevant code sections and concludes that the proposed facility meets those provisions.
The residents’ appeal letter identifies four items that form the basis of the appeal. Of those four items, only two directly address the CMRS review and approval criteria found in sections 3-3.8 and 5-3.8 of the Arapahoe County Land Development Code. The four appeal items are summarized here.
1 - “The Applicant failed to follow the Land Development Code (LDC) 5-2.1.B.2 processes regarding notification and feedback gathering…” for the Location and Extent application. The Arapahoe County Planning Commission approved the Lakeview Park Location and Extent on March 15, 2022 (see CMRS21-001 Conditional Approval Letter Findings of Fact numbers 4, 5, 6, 7, and 8). The hearing was fully noticed as required under the Land Development Code and the Planning Commission had lawful jurisdiction to approve the application (Conditional Approval Letter Findings of Fact number 7). That decision is final. Neither the Land Development Code nor state statute governing location and extent proceedings (CRS 30-28-110) allow for the public to appeal a Planning Commission’s decision on a location and extent decision. Moreover, Section 5-2.1.B.2 of the Land Development Code provides the neighborhood meeting requirements for particular types of land use applications. For location and extent applications, neighborhood meetings are not required unless “deemed necessary.” Section 5-2.1.B.2.i.iv. With the amount of advance public meetings and communications by the Park District, as documented in the Record and in the Conditional Approval Letter Findings 6 and 8, a neighborhood meeting was not deemed necessary. Accordingly, that no neighborhood meeting was conducted specifically for the purpose of the location and extent application was not error and is not a lawful basis upon which to reverse the Planning Division Manager’s decision approving CMRS21-001. It is important to note that a neighborhood meeting was held on the CMRS application June 1, 2022 (Conditional Approval Letter Findings of Fact number 12).
2 - The proposed facility fails to meet the requirement that it be “architecturally compatible with the surrounding area.” This appeal item cites Section 3-3.8.A.2.b.i of the Land Development Code, which is one of the review and approval criteria for CMRS facilities. The staff approval letter addresses the architectural compatibility requirement in Findings of Fact numbers 14, 15, 16, 17, and 18 and Conclusions of Law numbers 21 and 25. Architectural compatibility can be judged differently by different observers, and staff reviews applications against the minimum standards identified in the Land Development Code.
3 - There was no environmental or safety review and the proposed tower will introduce a health and safety risk to pedestrians on the pathway next to the proposed tower. The Land Development Code does not require an “environmental or safety review” before approval of a CMRS facility. Moreover, the County is preempted by federal law from regulating a CMRS facility based on the environmental effects of RF emissions. “(iv) 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 Commission's regulations concerning such emissions.” 47 U.S.C. Section 332(c)(7)(iv).
Otherwise, the proposed facility meets the setback and other requirements specified in the Land Development Code (see CMRS21-001 Conditional Approval Letter Findings of Fact numbers 17 and 18), and if constructed the facility will be reviewed through building permit process for compliance with building/life safety codes, which include structural review, and the facility will have to comply with federal standards for RF emissions. Accordingly, this ground for appeal is without merit, is not linked to the CMRS review and approval criteria specified in the Land Development Code, and is not a lawful basis upon which to reverse the Planning Division Manager’s decision approving CMRS21-001 this appeal.
4 - The applicant did not adequately prove that there are no feasible existing structures for co-location, including the potential for distributed small cell sites. Per Section 3-3.8.A.4.b.ii of the LDC, the applicant shall have the burden of proving that there are no feasible existing structures available. Staff review found that the applicant met this standard (see Findings of Fact numbers 14 and 15, and Conclusion of Law number 24). The applicant provided responses to suggestions about alternative sites and the use of small cell technologies in their letter dated May 9, 2023 (Administrative Record Bates number AC_00122).
Based on the review and approval criteria in the Arapahoe County Land Development Code, it was staff’s finding and decision that the CMRS facility as proposed meets all criteria for approval identified in the land Development Code, including the concealment, and architectural compatibility requirements.
Fiscal Impact: No direct fiscal impact.
Alternatives: After considering the record and any testimony presented at the June 11, 2024 appeal, the Board may choose to:
1. Affirm the staff approval
2. Reverse the staff approval
3. Continue the decision to a future date
Alignment with Strategic Plan:
☐Be fiscally sustainable
☐Provide essential and mandated service
☒Be community focused
Staff Recommendation: Based on the materials submitted for the record and on the review and approval criteria found in sections 3-3.8 and 5-3.8 of the Land Development Code, staff approved the proposed CMRS facility.
Concurrence: County Attorney and Public Works & Development staff have reviewed the proposed application and report.
Suggestion Motion(s): Attached.
Resolution: Attached.