Town of Cary , North Carolina
Revised Special Use Staff Report
American Tower 09-SU-007
Town Council - REMAND DECISION
April 14, 2011

The applicant, American Tower Corporation, requested consideration of a Special Use Permit to allow establishment of a freestanding telecommunications tower use on a 2.64-acre parcel located in the Office and Institutional (OI) zoning district. Town Council denied the application after a quasi-judicial hearing held on June 9, 2010. American Tower Corporation appealed Council’s decision to Superior Court. Judge Manning has ordered Council to make such findings as are required by the LDO consistent with the granting and issuance of the requested Special Use Permit and to issue the Special Use Permit to American Tower Corporation.

NOTES:
Special uses are generally compatible with other land uses permitted in the zoning district. However, because of the unique characteristics or potential impacts on the surrounding neighborhood and on the Town as a whole, they require individual consideration as to location, design, configuration, and/or operation at a particular location. [LDO Sec. 3.8.1(A)].

In accordance with Section 3.8.1(B) of the Land Development Ordinance (LDO), an associated site plan is being reviewed in conjunction with this special use permit application.

In accordance with the LDO, the Town Council must follow quasi-judicial procedures when deciding special use permits.

Property Owner	Wake County Parcel Identification Number (PIN) (10-digit)	Real Estate ID Number	Deeded Acreage
East Kilmayne, LLC c/o Dennis Britt 51 Kilmayne Drive, Suite 100 Cary, NC 27511-7719	0763541771	0283571	2.64
Total Area			2.64

In accordance with Section 5.2.4(D) of the Land Development Ordinance, the applicant has requested Town Council consideration for approval of a special use to establish a freestanding telecommunications tower (monopole) adjacent to the existing waste container enclosure at 51 Kilmayne Drive. The proposed structure would be 110 feet in height and would contain internal-mounted antennae arrays to minimize the visual impacts of the proposed tower. All associated ground equipment would be housed in an enclosure adjacent to and consistent architecturally with the existing waste container enclosure.

This request was the subject of a public hearing before the Town Council on June 9, 2010. After conducting a quasi-judicial hearing and considering the application materials, testimony and evidence presented at the hearing or otherwise appearing in the record, the Town Council voted to deny the application for a special use permit for a freestanding telecommunications tower (monopole) on property located at 51 Kilmayne Drive, for the reasons stated in the “RESOLUTION Denying SPECIAL USE PERMIT (09-SU-007)”, signed/dated June 24, 2010. The Applicant appealed said Council decision to Wake County Superior Court, case number 10-CVS-13326, in accordance with applicable statutes. On March 15, 2011, Judge Manning issued a Judgment and Order (EXHIBIT M) that reversed the decision of the Town Council denying the Special Use Permit application, remanding such matter to the Council for the Town to “issue the special use permit to the Petitioner according to the findings on remand and consistent with the terms, conditions and plans as contained and set forth in the Petitioner’s Application”.

LIST OF EXHIBITS:
Exhibit A: Special Use Application (3 pages)
Exhibit B: Special Use Findings of Fact (Statement of Justification) (2 pages)
Exhibit C: Statement of Support (7 pages)
Exhibit D: Existing Conditions Photos (5 pages)
Exhibit E: 368-603 Emissions Certification (2 pages)
Exhibit F: 368-603 Location Justification (3 pages)
Exhibit G: Kilmayne Water Tank Map (1 page)
Exhibit H: American Tower Telecommunications Facility Site Plan and all associated documents
Exhibit I:  Historic Preservation Determination (1 page)
Exhibit J: Letter from Chuck Fain (2 pages)
Exhibit K: Letter from Jim Rasor (2 pages)
Exhibit L: Photosimulations (5 pages)

JUDGE MANNING’S JUDGMENT AND ORDER
Exhibit M: Judgment and Order, case 10-CVS-13326 (6 pages)

Applicant & Agent	American Tower Corporation c/o Jill House 400 Regency Forest Drive Cary, NC 27518
Acreage	2.64 ±
General Location	South side of Kilmayne Drive, behind the Re/Max office building
Land Use Plan Designation	Office/Institutional (OFC/INS)
Zoning District(s)	Office and Institutional (OI) in the Mixed Use Overlay (Mayfair Community Center) and the Swift Creek Watershed Protection Overlay (Existing Urban) Districts
Proposed Use	Freestanding Telecommunication Tower (monopole)
Associated Site Plan	09-SP-062 – American Tower Telecommunications Facility
Staff Contact	Kevin A. Hales, Senior Planner Town of Cary Planning Department P.O. Box 8005 Cary, NC 27512-8005

Streams: According to the Town of Cary’s GIS maps, there are no streams located either on or in the immediate vicinity of the property.
Floodplain: According to the Town of Cary’s GIS maps, there is no floodplain or flood hazard area either on or in the immediate vicinity of the property.
Wetlands: According to the applicant’s site plan, there are no wetlands located on the property.
Topography: The property slopes gently downward from Kilmayne Drive toward the southern property line.
Surrounding Land Uses:
North – Office (Re/Max building), Institutional (Greenwood Forest Baptist Church), and vacant, non-residential property
South – Life Care Community (Woodland Terrace)
East – Vacant non-residential parcel (Office approved in Kilmayne MUSP)
West – Retail (CVS) and Office (multiple buildings)

Pre-application Conference
The applicant attended a pre-application conference with the Town of Cary Development Review Committee on August 26, 2009.
Notification
On May 26, 2010 the Planning Department mailed notification of a public hearing on the request to property owners within 400 feet of the subject property. Notification consistent with General Statutes was published in the Cary News on May 26 and June 6, 2010.
Property Posting
Notice of the public hearing was posted on the property on May 26, 2010.

Comprehensive Plan Element	Consistent	Not Consistent	Not Applicable
A. Land Use Plan	x
B. Parks, Recreation, and Cultural Resources Facility Master Plan	x
C. Growth Management Plan			x
D. Affordable Housing Plan			x
E. Comprehensive Transportation Plan	x
F. Open Space and Historic Resources Plan	x

A. Land Use Plan
The Land Use Plan, a volume of the Town’s Comprehensive Plan, designates the land use of the subject parcel as Office/Institutional (OFC/INS). The site is also within the boundary of the Mayfair Community Mixed Use Center.
B. Parks & Greenways Master Plan
According to the Parks, Recreation and Cultural Resources Facilities Master Plan there are no issues related to this site.
C. Growth Management Plan
The Growth Management Plan is not applicable to this special use request.
D. Affordable Housing Plan
The Affordable Housing Plan is not applicable to this special use request.
E. Comprehensive Transportation Plan
There are no issues related to the site as it is already developed.
F. Open Space and Historic Resources Plan
There are no issues related to the site as it is already developed.

Traffic
The proposed telecommunications tower would not be a staffed facility and would not generate enough peak-hour vehicle trips to trigger the ordinance requirements for a traffic study.
Open Space
No additional open space is required beyond the perimeter buffers and streetscapes.
Buffers and Streetscapes
The site is located in the vicinity of the property’s western perimeter buffer, which is required to meet a Type C (aesthetic) performance standard. The proposed telecommunications tower would not impact the surrounding buffers on the existing office site.
Architectural
The proposed ground enclosure would be architecturally consistent with the existing waste container enclosure. The tower itself would be bronze in color to match the existing light poles and the tower would use internal-mounted panel antennae to minimize the visual impact of the structure.

Staff has reviewed the application and the materials provided by the applicant for both compliance with the requirements of the Land Development Ordinance and for consistency with the Comprehensive Plan. Staff has included a brief discussion of its findings in relation to the general criteria for approval of a special use permit in the attached worksheet.

Based on the information submitted in support of the application and on the analysis presented within this staff report, the Development Review Committee (DRC) believes this request meets the required approval criteria for Special Uses established in Section 3.8.3 of the LDO. Therefore, the DRC recommends approval of the requested special use permit with the addition of the following conditions:

1. The Resolution and Permit approved by the Town Council in this special use application shall be recorded with the Wake County Register of Deeds upon the expiration of the appeal period, per Section 3.8.4(E) of the LDO. The original recorded Resolution and Permit shall be returned to the Planning Department when received from the Register of Deeds.

2. In accordance with LDO Section 3.8.1(B)(2), the approval of this special use is conditioned on the

subsequent approval of a site plan as required under LDO Section 3.9.

UPDATED STAFF RECOMMENDATION

Staff recommends adoption of the Resolution and Permit, as ordered by Judgment and Order dated March 15, 2011 (EXHIBIT M).