February 5, 2007 - 6:00 PM - County Board of Commissioners Meeting Minutes (Rezoning)

10 63 Meeting of the Johnston County Board of Commissioners February 5 , 2007 6 00 pm The Johnston County Board of Commissioners met in regular session Monday , February 5 , 2007 at 6 00 pm in the Commissioners Meeting Room , Johnston County Courthouse Annex , Smithfield , North Carolina The following members were present Present Cookie Pope , Chairman , Wade M Stewart , Vice Chairman , Allen L Mims , Jr , Jeffrey P Carver , W Ray Woodall , DeVan Barbour , and Tony Braswell Absent None Also Present Rick J Hester , County Manager , April N Byrd , Clerk to the Board , J Mark Payne , County Attorney , and Deva C Holt , Deputy Clerk Chairman Pope called the meeting to order at 6 15 pm , and the following business was transacted 1 Public Comments A Follow - up to Animal Control and Illegal Burning Complaint in Princeton Joan Worley , 2049 Old Cornwallis Road , Princeton , thanked the Board and County staff for their help with an animal issue and illegal burning complaint in her neighborhood during the past few months B Cell Tower Concerns Richard Bolyard , 405 Scotts Ridge Drive , Apex , addressed the Board with complaints and concerns over a recent cell tower constructed adjacent to his mother’s property on Jack Road in Clayton Chairman Pope requested the County Manager and the County’s Cell Tower Consultant look into Mr Bolyard’s concerns 2 Public Hearings – Rezoning Cases and Special Use Permit Requests Advertised – In The Smithfield Herald – January 26 , 30 , 2007 Certified letters were mailed to adjoining property owners on January 25 , 2007 Notices were posted at the locations on August 30 , 2005 for Case 05 - 27 The Chairman opened the Special Use Hearing for Case 05 - 27 Case 05 - 27 Application to modify a Special Use Permit for the hot mix asphalt plant located on Uzzle Industrial Drive in Wilson’s Mills Township Applicant wishes to extend the operating hours to 24 hours per day and to include Sunday’s Tax ID 17J07005S Applicant ST Wooten Corporation Owner ST Wooten Corporation Those wishing to speak on Special Use Case 05 - 27 were sworn in by the Clerk to the Board Assistant Planning and Zoning Director Berry Gray introduced the special use case , and stated the request is to modify a Special Use Permit for the hot mix asphalt plant located on Uzzle Industrial Drive in the Wilson’s Mills Township The Applicant wishes to extend the operating hours to 24 hours per day and to include Sundays Mr Gray introduced the following summary of evidence into the record A pre - application consultation was held with the applicant for Case 05 - 27 on November 1 , 2006 At that time , the applicant was informed of the following • If approved , applicant must provide to the Planning Office a Site Plan for their review and approval • Applicant must comply with the requirement of the Johnston County Land Development Code regarding landscaping , buffering and fence or any additional requirements as approved by this Board • Applicant will be notified in writing of the Board’s decision • If denied , no application can be accepted for the same use affecting the same property for a period of twelve 12 months and that their right of appeal to the Superior Court must be exercised within thirty 30 days of the receipt of notice of denial by the Board of County Commissioners • Applicant’s Special Use Permit will expire at the end of twenty - four 24 months if it is not used as permitted within the time period • When necessary , staff informed the applicant of further Planning and Zoning Department requirements and the requirements of other departments such as soil erosion and sedimentation requirements , Health Department regulations , stormwater and public utility requirements • Subsequent to the pre - application consultation , all required notices were mailed to property owners within 500 feet The property was posted and notices of public hearings were advertised in accordance with the requirements of the North Carolina General Statutes Page64 February 5 , 2007 - 6 00 pm Continued On December 19 , 2006 , the Johnston County Planning Board held a public hearing regarding Rezoning Special Use Permit Case 05 - 27 and made the following recommendations Upon a motion by Mr Browder , seconded by Mr Schulz , and carried by a unanimous vote of 9 - 0 , the Planning Board voted at its December 19 , 2006 meeting to recommend approval of the Special Use Permit modification , Case 05 - 27 , based on and subject to the following Finding of Facts for the Special Use Permit 1 That the use or development is located , designed , and proposed to be operated so as to maintain or promote the public health , safety , and general welfare ; All original conditions , except the hours of operation , of the Special Use Permit must be adhered to and followed in order to maintain the public health , safety , and general welfare 2 That the use or development appears to comply with all required use and intensity regulations of Articles II and IV of the Johnston County Land Development Code and the applicable specific standards in section 14 - 257 and with all applicable regulations ; An existing contract with NCDOT mandates ST Wooten to perform night paving and possible Sunday paving 3 That the use or development is located , designed , and proposed to be operated so as to maintain or enhance the value of contiguous property , or that the use or development is a public necessity ; Applicant anticipates night and Sunday paving to be minimal , but necessary to complete the Clayton Bypass and other jobs as necessary in a safe and timely manner for our county’s transportation system 4 That the use or development conforms with general plans for the physical development of the County’s Planning jurisdiction , the Design Manual , or other development policies as adopted by the Board of Commissioners ; and This development conforms to all codes , plans , and requirements as set by the boards 5 That the use as proposed will provide a valuable use for the community The asphalt plant is scheduled to be constructed this winter By allowing some night paving , applicant will provide a valuable and necessary service to the county Special Use Conditions 1 Submission of a detailed site plan for review and approval by the Planning & Zoning Department 2 Buffer Class C buffer 3 large trees , 6 small trees , and 16 shrubs every 100 linear feet along the south & east property lines or existing vegetation must remain Class B buffer 3 large trees , 4 small trees , and 12 shrubs every 100 linear feet along the north property line 3 Hours of operation 24 hours day ; 7 days week , as needed 4 Any proposed buildings must meet NC Commercial Building Codes Robert Lawford , Environmental and Permitting Manager for ST Wooten , stated the Applicant has entered into a contract with NC DOT for the US 70 Bypass The contract includes night and weekend work He noted there is a possibility ST Wooten will pick up other NC DOT contracts as well Mr Gray stated that based on the Findings of Fact and Special Conditions as presented , the Planning Board recommended approval of the modification There being no further comments , the Chairman closed the Special Use Hearing for Case 05 - 27 Decision on Special Use Case 05 - 27 Case 05 - 27 Application to modify a Special Use Permit for the hot mix asphalt plant located on Uzzle Industrial Drive in Wilson’s Mills Township Applicant wishes to extend the operating hours to 24 hours per day and to include Sunday’s Tax ID 17J07005S Applicant ST Wooten Corporation Owner ST Wooten Corporation Based on the following findings of fact with special conditions attached , Commissioner Allen L Mims , Jr moved the Board authorize the Planning Department to issue a special use permit to Applicant and Owner ST Wooten Corporation to modify a Special Use Permit for the hot mix asphalt plant located on Uzzle Industrial Drive in the Wilson’s Mills Township Commissioner W Ray Woodall seconded the motion , which carried by unanimous vote Finding of Facts for the Special Use Permit 1 That the use or development is located , designed , and proposed to be operated so as to maintain or promote the public health , safety , and general welfare ; All original conditions , except the hours of operation , of the Special Use Permit must be adhered to and followed in order to maintain the public health , safety , and general welfare 2 That the use or development appears to comply with all required use and intensity regulations of Articles II and IV of the Johnston County Land Development Code and the applicable specific standards in section 14 - 257 and with all applicable regulations ; An existing contract with NCDOT mandates ST Wooten to perform night paving and possible Sunday paving 3 That the use or development is located , designed , and proposed to be operated so as to maintain or enhance the value of contiguous property , or that the use or development is a public necessity ;Page65 February 5 , 2007 - 6 00 pm Continued Applicant anticipates night and Sunday paving to be minimal , but necessary to complete the Clayton Bypass and other jobs as necessary in a safe and timely manner for our county’s transportation system 4 That the use or development conforms with general plans for the physical development of the County’s Planning jurisdiction , the Design Manual , or other development policies as adopted by the Board of Commissioners ; and This development conforms to all codes , plans , and requirements as set by the boards 5 That the use as proposed will provide a valuable use for the community The asphalt plant is scheduled to be constructed this winter By allowing some night paving , applicant will provide a valuable and necessary service to the county Special Use Conditions 1 Submission of a detailed site plan for review and approval by the Planning & Zoning Department 2 Buffer Class C buffer 3 large trees , 6 small trees , and 16 shrubs every 100 linear feet along the south & east property lines or existing vegetation must remain Class B buffer 3 large trees , 4 small trees , and 12 shrubs every 100 linear feet along the north property line 3 Hours of operation 24 hours day ; 7 days week , as needed 4 Any proposed buildings must meet NC Commercial Building Codes Per the Applicant’s request , the Board tabled the rezoning request for Case 06 - 39 until the March 5 , 2007 meeting Case 06 - 39 Petition to rezone 1057 acres from Agricultural - Residential District AR to Agricultural - Residential District AR with an overlay of Interstate Highway Interchange District IHI located on Old Drug Store Road SR 1524 , which is approximately ¼ of a mile south of its intersection with NC 42 West in Cleveland Township Tax ID 06E02009J , 06E02009I , 06E02009C Applicant William Douglas Parker , Jr c o Conan McClain Owners William Haywood & Patsy Whitley , Jeanette Whitley & James David Hagwood , Wade Stanley & Hilda Walton Whitley 3 Second Vote Temporary Storage Container POD Amendment Assistant Planning and Zoning Director Berry Gray stated temporary storage containers , also known as PODs , are becoming more popular in the county Currently , there are no guidelines in the County’s code to regulate such structures The Planning Board recommended the Commissioners consider the following amendment to address a definition , maximum size , location , and removal period Section 14 - 75 b 11 11 Temporary Storage Containers a Definition Any container intended for storing or keeping household goods , other personal property or business related goods that is intended to be filled , refilled , or emptied while located outdoors and later removed from the property for storage or disposal off - site b A storage container may not exceed 160 square feet in size , nor be more than eight 8 feet in height c The storage container shall conform to the side and rear yard setbacks of the zoning district in which it is located and may be placed within the front yard , outside of the road right - of - way d A temporary storage container must be removed within 30 days of its initial placing on a lot and shall not be replaced for six months from the date of removal Temporary storage containers for residential use may be placed on property twice during a calendar year e Dumpsters placed for the purpose of collecting waste from construction shall be exempt from these rules Mr Gray reminded the Board that at the January 2 , 2007 meeting , the vote to approve the proposed temporary storage container POD amendment was not unanimous , and according to NCGS 153A - 45 the Commissioners will need to take a second vote on the matter Following discussion among the Board on the need for clarification as to who the amendment will apply to and the possibility of a permitting process , Commissioner Tony Braswell moved the Board not adopt the proposed temporary storage container POD amendment and requested the Planning Board revisit the matter Commissioner Allen L Mims , Jr seconded the motion , which carried by the following vote Ayes Commissioners Cookie Pope , Wade M Stewart , Allen L Mims , Jr , W Ray Woodall , DeVan Barbour , and Tony Braswell Nays Jeffrey P CarverPage66 February 5 , 2007 - 6 00 pm Continued 4 Public Hearing Mobile Home Age Amendment Advertised January 26 , 30 , 2007 The Smithfield Herald The Chairman opened the public hearing , and stated the purpose of the hearing is to consider public comment on the possible amendment to the County Code of Ordinances – Chapter 14 , Section 14 - 75 b 2 a – Mobile Home Age Assistant Planning and Zoning Director Berry Gray stated Planning staff has found that the current code related to the age of mobile homes allowed within the county is not sufficient in that there appears to be loop holes due to wording deficiencies The proposed amendment clarifies that no mobile home older than a 1976 model can be moved and set - up in the county unless it is already legally permitted as a residence in the county This would eliminate those being moved into the county for storage , or temporarily located on sales lots He referenced a letter from the NC Manufactured Housing Institute expressing no concerns with the proposed amendment Commissioner W Ray Woodall , stated in his opinion , the proposed amendment is still not stringent enough , and wondered if the Board should restrict this to no mobile home older than ten years can be moved and set - up in the county unless it is already legally permitted as a residence in the county In response to a question from Commissioner Tony Braswell , County Attorney Mark Payne stated 1976 is the basis because of public safety reasons , and noted there is a significant difference between mobile homes constructed before and after 1976 He added the Board can enforce another date , besides 1976 , if it is justifiable Mr Gray stated the Planning Board recommended approval of the proposed amendment to the Land Development Code – Chapter 14 , Section 14 - 75 b 2 a – Mobile Home Age There being no further comments , the Chairman closed the public hearing Commissioner DeVan Barbour moved the Board adopt the following amendment to the Johnston County Code of Ordinances - Section 14 - 75 b 2 a – Mobile Home Age Commissioner Allen L Mims , Jr seconded the motion , which carried by unanimous vote Section 14 - 75 b 2 a New language is bold and in italics a No mobile home can be moved from another county into the county’s jurisdiction that has with a manufactured date prior to 1976 can be set - up as a residence unless it is already legally set - up as a residence within Johnston County 5 Public Hearing Cell Tower Ordinance Amendment Advertised January 26 , 30 , 2007 The Smithfield Herald The Chairman opened the public hearing , and stated the purpose of the hearing is to consider public comment on the possible amendment to the County Code of Ordinances – Chapter 14 , Section 14 - 257 o – Cell Tower Assistant Planning and Zoning Director Berry Gray introduced Rusty Monroe and Jackie Hicks with The Center for Municipal Solutions CMS , cell tower consultant for the County , who prepared the proposed amendment to the Cell Tower Ordinance Mr Monroe noted the recommendations are based on changes in recent case law and the cell tower industry’s technology and practices He stated that the amendment will facilitate the co - location process by minimizing the number of new towers and maximizing co - location on existing towers Mr Monroe reviewed the following major changes in the proposed amendment Section Issue Change DAS Technology Definitions Currently none required and Countys authority to Added Distributed Access System DAS as type of require not established legislatively stealth able to be required under the right circumstances Information Required in ApplicationPagePage pageNumber567 February 5 , 2007 - 6 00 pm Continued Section 8 - For a Currently there is no differentiation in the To avoid argument as to why it is needed , the proposed New Tower or draft categorizes the information required by reason , ordinance between what information is required Increasing the for a new tower and for a co - location Co - eg Proof of Need ; Ownership Information ; Planning Height of existing locations are handled by relief or exemption and Zoning ; and Safety structure attached during the pre - application meeting to Remediation Work re Condition of Tower This is not addressed in the current ordinance As a matter of safety , no Building Permit shall be issued for any Wireless Facility in need of remediation , unless and until all remediation work needed has been completed or a schedule for the remediation work has been approved by the County Planning Department Radio Frequency Radiation Emissions Testing This is not addressed in the current ordinance It In certain instances , the County may deem it is particularly a problem issue when locating on a appropriate to have an actual on - site RF survey of the building or a water tank or anywhere that people facility done after the construction or modification and are able to come close to the antennas activation of the Facility , such to be done under the direction of the County or its designee , and an unredacted copy of the survey results provided , along with all calculations Balloon Test Currently there is no requirement for signage At least fourteen 14 days prior to the conduct of the advertising the Balloon Test balloon test , a sign shall be erected so as to be clearly visible from the road nearest the proposed site and shall be removed no later than fourteen 14 days after the conduct of the balloon test The sign shall be at least four feet 4 ’ by eight feet 8 ’ in size and shall be readable from the road by a person with 20 20 vision Such sign shall be placed off , but as near to , the public right - of - way as is possible Such sign shall contain the times and date s of the balloon test and the date , time and location of the required Planning Board hearing , as well as a copy of the proposed site plan The dates , including a second date , in case of poor visibility on the initial date times and location of this balloon test shall be advertised by the Applicant seven 7 and fourteen 14 days in advance of the first test date in a newspaper with a general circulation in the County and as agreed to by the County The Applicant shall inform the County in writing , of the dates and times of the test , at least fourteen 14 days in advance The balloon shall be flown for 8 consecutive hours The balloon shall be flown for at least four 4 sometime between 7 00 am and 4 00 pm on the consecutive hours between 10 00 am and 2 00 pm on dates chosen the dates chosen The primary date shall be on a week - end , but the second date , in case of poor visibility on the initial date , may be on a week day Balloon Test Notification Currently , the Planning Department handles the The Applicant shall notify all property owners and notification , even though there is no notification residents located within one - thousand five hundred feet requirement in the current ordinance 1,500 of the nearest property line of the subject property of the proposed construction of the Tower and Wireless Facility and of the date s and time s of the balloon test Such notice shall be provided at least fourteen 14 days prior to the conduct of the balloon test and shall be delivered by US Certified Mail , In lieu of this requirement , the Applicant may place an ad in a paper of general circulation in the County that is at least 4 column inches by 4 column inches to be run twice ; once fourteen 14 days prior to the conduct of the balloon test and once seven 7 days prior , and shall deliver to the County a Proof - of - Publication certification attesting to the fact that the ad did run as required PagePage pageNumber668 February 5 , 2007 - 6 00 pm Continued Section 9 Process for Co - Locations New separate Section containing abbreviated less Current version requires exceptions to or relief time - consuming and less costly requirements for from requirements that are not applicable to a co - location , as it does not distinguish between the information to be provided for co - locations Does not requirements for a new tower and those for a co - require proof of need , including need for height location requested , since the visual impact will be minimal ANSI Inspection Currently no express requirement to determine Added express requirement for an ANSI Inspection for condition of existing tower as regards safety existing towers , per the ANSI code Have had to resort to using the Countys inherent Police Powers Section 10 Priorities of Siting for New Tower Currently 1 On existing Towers or other tall 1 On County - owned properties or facilities ; 2 On structures ; 2 On compatible use structures , such existing Towers or other structures without increasing as utility poles and towers ; 3 On public owned the height of the tower or structure ; 3 On properties in properties ; 4 on a site with existing Wireless areas zoned for Business use ; 4 On properties in areas Telecommunications Facilities or structures ; and zoned for Agricultural use ; and 5 On properties in areas 5 Other property in the County zoned for Residential use Section 12 Height Currently no specific height restriction Towers The maximum permitted total height of a new Tower and facilities shall be no higher than the minimum shall be one hundred twenty feet 120 ’ above pre - height necessary to accomplish the wireless construction ground level , unless it can be proven that service coverage or capacity required within the such height would prohibit or have the effect of community This is too vague and leads to prohibiting the provision of service in the intended arguments and disagreements and added cost to service area The 120 ’ maximum permitted height is not the applicant vis - a - vis the cost of processing the an as - of - right height , but rather the maximum permitted application height , absent proof of the technological need for a greater height As it was not an issue at the time because of a Spacing or the distance between towers shall be such standard technological need for minimum of 10 of that the service may be provided without exceeding the separation spacing , the current ordinance does maximum permitted height not address the issue of spacing Section 13 Visibility of Facilities Visual Impact Stealth or Camouflage Currently no requirements Current ordinance does not expressly address or All new Wireless Telecommunications facilities , require stealth or camouflage including but not limited to towers , shall utilize Stealth or Camouflage techniques and technology , unless such can be show to be either Commercially or Technologically Impracticable Dual Mode Antennas As this is a relatively new technological In order to minimize the number of antenna arrays and development , the current Ordinance does not thus the visual impact , the County may require the use address this issue of dual mode antennas to be used , including by two different carriers , unless it can be proven that such will not work technologically and that such would have the effect of prohibiting the provision of service Lighting Shielding As the County adopted in a de facto sense a For any Wireless Facility for which lighting is required maximum height of 199 which does not require under the FAA’s regulations , or that for any reason has lighting , the current ordinance does not address lights attached , all such lighting shall be affixed with this issue technology that enables the light to be seen as intended from the air , but that prevents the ground scatter effect so that it not able to be seen from the ground to a height of at least 12 degrees vertical for a distance of at least 1 mile in a level terrain situation Such device must be compliant with or not in conflict with FAA regulations A physical shield may be used , as long as the light is able to be seen from the air , as intended by the FAA Retrofitting re Lighting Currently no requirements In the event a tower that is lighted is modified , at the time of the modification the County may require that the Tower be retrofitted with the technology set forth in the preceding subsection F PagePage pageNumber769 February 5 , 2007 - 6 00 pm Continued Profile of antennas Currently no requirements This issue has All new or replacement antennas , except omni - recently been addressed by requiring the smallest directional whip antennas , shall be flush - mounted on profile as a condition of the permit any tower or other structure , unless the Applicant can prove that it is technologically impracticable Attachment to Buildings The current Ordinance does not address this If attached to a building , all antennas shall be mounted issue , though the use of buildings will become on the facie of the building and camouflaged so as to increasingly more common frequent , especially match the color and , if possible , texture of the building when preventing towers in residential or in a manner so as to make the antennas as visually neighborhoods as the carriers move deeper into innocuous and undetectable as is possible given the them facts and circumstances involved Lot Size & Setback Currently , there is no requirement for anything The fall zone or setback shall be measured from the other than that a new tower be setback from all nearest portion of the right - of - way of any public road or property lines a distance equal to the height of the thoroughfare and any occupied building or domicile tower plus 10 or the existing setback Further , the nearest portion of any access road to a requirements of the underlying zoning district , wireless facility shall be no less than fifteen 15 feet whichever is greater from the nearest property line Section 17 Retention of Expert Assistance Escrow Deposit Currently 7,500 and has not The escrow deposit shall be 8,500 This is intended to changed in almost 5 years In some instances lessen the probability of having to request projects have had to be stopped until the deposit replenishment of the deposit , thereby stopping all work has been replenished , thereby slowing down the on the application until it has been replenished , as well as taking staff time to draft and send notice Note that it expansion or improvement of the service is primarily the carrier and or County who determines if and how much is spent beyond 7,500 Section 18 Public Hearing and Notification Currently there is no requirement in the ordinance In order that the nearby landowners are aware of the to notify nearby residents , other than the public public hearing , the Applicant shall notify all landowners notice However , currently the Planning within one - thousand five hundred 1,500 feet of any Department sends out the notices property line of the lot or parcel on which the new Wireless Telecommunications Facilities are proposed to be located Section 32 Bi - Annual Meeting Currently there is no mechanism for creating a In order to develop a logical , rational plan of deployment coordinated , rational plan of development with the and siting of Wireless Telecommunications Facilities industry within the County that provides reasonable coverage within the County based on the needs of the County and its residents , while minimizing the number and intrusiveness of the facilities and the most efficient use of Wireless Telecommunications Facilities sites , twice annually within the months of January and June of each calendar year , the County shall , hold a meeting of all carriers and tower companies who have filed applications the previous year or anyone who has expressed an interest in filing an Application to construct a Wireless telecommunications Facility The County shall notify each party of the date , time and place of the meeting no later than thirty 30 days prior to the meeting at the last known address of the party and attendance shall be expected PagePage pageNumber870 February 5 , 2007 - 6 00 pm Continued In order to allow the allocation of the County’s resources to those applications deemed urgent or critical so that they may be permitted and service provided as expeditiously as is reasonably possible , lack of attendance shall be deemed as evidence of a lack of urgency or any critical need for the facility and subject the party not attending to a longer review process than for those attending Consideration of Applications by those not attending shall be addressed and considered by the Planning Board twice annually , at dates to be established by the Planning Board Exceptions to this policy may be granted by the Director of Planning based on facts and circumstances deemed sufficient to warrant exception that are shown to be in the interest of the County and its residents Mr Monroe pointed out the recommended maximum height of 120 ft would better facilitate wireless internet access , “ tele - medicine ” , and other high speed transmissions In his opinion , the policy question for the Board to decide is whether the County would prefer more towers that are lower in height , or fewer towers that are taller Commissioner Allen L Mims , Jr asked if the towers are shorter in height and closer together , would this affect coverage and losing calls Mr Monroe stated “ hand - off capability ” is not an issue with the shorter towers Commissioner Wade M Stewart asked if the proposed amendment would discourage providers from locating in Johnston County Mr Monroe stated the providers will go where they think money can be made , regardless of the jurisdiction’s ordinance Richard Bolyard , 405 Scotts Ridge Drive , Apex , supported the recommendations regarding the balloon test and reducing the permitted tower height to 120 ft He expressed concern that the proposed amendment did not address noise , and felt the setback requirement was insufficient Mr Bolyard stated , in his opinion , the ordinance should have the ability to assess negative effects on adjoining property owners Mr Monroe noted the cell tower sites do have generators for emergency purposes He suggested the noise complaint be addressed with the County’s Noise Ordinance , and thought this would be a safer , legal means to approach these concerns The County could require a common generator or set a limit on the number of generators , however , Mr Monroe stated that he is weary of recommending this practice County Attorney Mark Payne added , in his opinion , “ least visually and physically intrusive ” includes noise He noted the ordinance sets a maximum decibel limit , and this gives the County a mechanism to address noise complaints Further , Mr Payne pointed out that “ Section 7 - Exclusions ” exempts certain public service facilities from the Cell Tower Ordinance Communications Director Jason Barbour added that Section 7 addresses the needs of emergency services and law enforcement In response to a question from Commissioner Stewart regarding radio frequency radiation and emissions , Mr Monroe stated that every study he has read says there is no more danger from a cell tower than using a cell phone He expressed no concern regarding radio frequency radiation and emissions Debbie Miller , 106 Tiercel Court , Cary urged the Board to consider the impact that cell towers have on residential neighborhoods She also expressed concern regarding noise and the need for vegetative screening There being no further comments , the Chairman closed the public hearing Commissioner Allen L Mims , Jr moved the Board adopt the following amendment to the Johnston County Code of Ordinances - Section 14 - 257 o – Cell Tower , and requested CMS look into the comments made during the hearing Commissioner W Ray Woodall seconded the motion , which carried by unanimous vote PagePage pageNumber971 February 5 , 2007 - 6 00 pm Continued Repealed Section 14 - 257 o Special use permit ; wireless communication receiving transmitting towers cellular towers Replace with the following new text Section 14 - 257 o Special use permit ; wireless communication receiving transmitting towers cellular towers Section 1 Purpose and Legislative Intent The Telecommunications Act of 1996 affirmed the County of Johnston’s authority concerning the placement , construction and modification of Wireless Telecommunications Facilities The County of Johnston finds that Wireless Telecommunications Facilities may pose significant concerns to the health , safety , public welfare , character and environment of the County and its inhabitants The County also recognizes that facilitating the development of wireless service technology can be an economic development asset to the County and of significant benefit to the County and its residents In order to insure that the placement , construction or modification of Wireless Telecommunications Facilities is consistent with the County’s land use policies , the County is adopting a single , comprehensive , Wireless Telecommunications Facilities application and permit process The intent of this Local Ordinance is to minimize impact of Wireless Telecommunications Facilities , establish a fair and efficient process for review and approval of applications , assure an integrated , comprehensive review of environmental impacts of such facilities , and protect the health , safety and welfare of the County of Johnston Section 2 Title This Ordinance shall be known and cited as the Wireless Telecommunications Facilities Siting Ordinance for the County of Johnston Section 3 Severability A If any word , phrase , sentence , part , section , subsection , or other portion of this Ordinance or any application thereof to any person or circumstance is declared void , unconstitutional , or invalid for any reason , then such word , phrase , sentence , part , section , subsection , or other portion , or the proscribed Application thereof , shall be severable , and the remaining provisions of this Ordinance , and all applications thereof , not having been declared void , unconstitutional , or invalid , shall remain in full force and effect B Any Special Use Permit issued under this Ordinance shall be comprehensive and not severable If part of a permit is deemed or ruled to be invalid or unenforceable in any material respect , by a competent authority , or is overturned by a competent authority , the permit shall be void in total , upon determination by the County Section 4 Definitions For purposes of this Ordinance , and where not inconsistent with the context of a particular section , the defined terms , phrases , words , abbreviations , and their derivations shall have the meaning given in this section When not inconsistent with the context , words in the present tense include the future tense , words used in the plural number include words in the singular number and words in the singular number include the plural number The word “ shall ” is always mandatory , and not merely directory A “ Accessory Facility or Structure ” means an accessory facility or structure serving or being used in conjunction with Wireless Telecommunications Facilities , and located on the same property or lot as the Wireless Telecommunications Facilities , including but not limited to , utility or transmission equipment storage sheds or cabinets B “ Applicant ” means any Wireless service provider submitting an Application for a Special Use Permit for Wireless Telecommunications Facilities C “ Application ” means all necessary and appropriate documentation that an Applicant submits in order to receive a Special Use Permit for Wireless Telecommunications Facilities D “ Antenna ” means a system of electrical conductors that transmit or receive electromagnetic waves or radio frequency or other wireless signals E “ Co - location ” means the use of an existing Tower or structure to support Antenna for the provision of wireless services F “ Commercial Impracticability ” or “ Commercially Impracticable ” means the inability to perform an act on terms that are reasonable in commerce ; the cause or occurrence of which could not have been reasonably anticipated or foreseen and that jeopardizes the financial efficacy of the project The inability to achieve a satisfactory financial return on investment or profit , standing alone , shall not deem a situation to be “ commercial impracticable ” and shall not render an act or the terms of an agreement “ commercially impracticable ” G “ Completed Application ” means an Application that contains all information and or data necessary to enable an informed decision to be made with respect to an Application H “ Council ” means the County Commission of the County of Johnston I “ DAS ” or “ Distributive Access System ” means a technology using antenna combining technology allowing for multiple carriers or Wireless Service Providers to us the same set of antennas J “ FAA ” means the Federal Aviation Administration , or its duly designated and authorized successor agency K “ FCC ” means the Federal Communications Commission , or its duly designated and authorized successor agency L “ Height ” means , when referring to a Tower or structure , the distance measured from the pre - existing grade level to the highest point on the Tower or structure , even if said highest point is an Antenna or lightening protection device M “ Modification ” or “ Modify ” means , the addition , removal or change of any of the physical and visually discernable components or aspects of a wireless facility , such as antennas , cabling , equipment shelters ,Page072 February 5 , 2007 - 6 00 pm Continued landscaping , fencing , utility feeds , changing the color or materials of any visually discernable components , vehicular access , parking and or an upgrade or change - out of equipment for better or more modern equipment Adding a new wireless carrier or service provider to a Telecommunications Tower or Telecommunications Site as a co - location is a modification A Modification shall not include the replacement of any components of a wireless facility where the replacement is identical to the component being replaced or for any matters that involve the normal repair and maintenance of a wireless facility without adding , removing or changing anything N “ NIER ” means Non - Ionizing Electromagnetic Radiation O “ Person ” means any individual , corporation , estate , trust , partnership , joint stock company , association of two 2 or more persons having a joint common interest , or any other entity P “ Personal Wireless Facility ” See definition for ‘ Wireless Telecommunications Facilities ’ Q “ Personal Wireless Services ” or “ PWS ” or “ Personal Telecommunications Service ” or “ PTS ” shall have the same meaning as defined and used in the 1996 Telecommunications Act R Repairs and Maintenance means the replacement or repair of any components of a wireless facility where the replacement is identical to the component being replaced or for any matters that involve the normal repair and maintenance of a wireless facility without the addition , removal or change of any of the physical or visually discernable components or aspects of a wireless facility that will add to the visible appearance of the facility as originally permitted S “ Special Use Permit ” means the official document or permit by which an Applicant is allowed to file for a building permit to construct and use Wireless Telecommunications Facilities as granted or issued by the County T “ Stealth ” or “ Stealth Technology ” means to minimize adverse aesthetic and visual impacts on the land , property , buildings , and other facilities adjacent to , surrounding , and in generally the same area as the requested location of such Wireless Telecommunications Facilities , which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances Stealth technology includes such technology as DAS or its functional equivalent U “ State ” means the State of North Carolina V “ Stealth ” or “ Camouflage ” means disguising a tower or wireless telecommunications facility so as to make it less visually obtrusive and not recognizable to the average person as a wireless telecommunications facility W “ Telecommunications ” means the transmission and or reception of audio , video , data , and other information by wire , radio frequency , light , and other electronic or electromagnetic systems X “ Telecommunication Site ” See definition for Wireless Telecommunications Facilities Y “ Telecommunications Structure ” means a structure used in the provision of services described in the definition of ‘ Wireless Telecommunications Facilities ’ Z “ Temporary ” means temporary in relation to all aspects and components of this Ordinance , something intended to , or that does , exist for fewer than ninety 90 days AA “ Tower ” means any structure designed primarily to support an antenna for receiving and or transmitting a wireless signal BB “ Wireless Telecommunications Facilities ” means and includes a “ Telecommunications Site ” and “ Personal Wireless Facility ” It means a structure , facility or location designed , or intended to be used as , or used to support Antennas or other transmitting or receiving devices This includes without limit , Towers of all types , kinds and structures , including , but not limited to buildings , church steeples , silos , water towers , signs or other structures that can be used as a support structure for Antennas or the functional equivalent of such It further includes all related facilities and equipment such as cabling , equipment shelters and other structures associated with the site It is a structure and facility intended for transmitting and or receiving radio , television , cellular , SMR , paging , 911 , Personal Communications Services PCS , commercial satellite services , microwave services and any commercial wireless telecommunication service not licensed by the FCC Section 5 Overall Policy and Desired Goals for Special Use Permits for Wireless Telecommunications Facilities In order to ensure that the placement , construction , and modification of Wireless Telecommunications Facilities protects the County’s health , safety , public welfare , environmental features , the nature and character of the community and neighborhood and other aspects of the quality of life specifically listed elsewhere in this Ordinance , the County hereby adopts an overall policy with respect to a Special Use Permit for Wireless Telecommunications Facilities for the express purpose of achieving the following goals A Requiring a Special Use Permit for any new , co - location or modification of a Wireless Telecommunications Facility B Implementing an Application process for person s seeking a Special Use Permit for Wireless Telecommunications Facilities C Establishing a policy for examining an application and issuing a Special Use Permit for Wireless Telecommunications Facilities that is both fair and consistent D Promoting and encouraging , wherever possible , the sharing and or co - location of Wireless Telecommunications Facilities among service providers E Requiring , promoting and encouraging , wherever possible , the placement , height and quantity of Wireless Telecommunications Facilities in such a manner , including but not limited to the use of stealth technology , to minimize adverse aesthetic and visual impacts on the land , property , buildings , and other facilities adjacent to , surrounding , and in generally the same area as the requested location of such Wireless Telecommunications Facilities , which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances F In granting a Special Use Permit , the County has found that the facility shall be the most appropriate site as regards being the least visually intrusive among those available in the County Page173 February 5 , 2007 - 6 00 pm Continued Section 6 Exceptions from a Special Use Permit for Wireless Telecommunications Facilities A No Person shall be permitted to site , place , build , construct , modify or prepare any site for the placement or use of a Wireless Telecommunications Facility as of the effective date of this Ordinance without having first obtained a Special Use Permit for a Wireless Telecommunications Facility as defined in Section Four 4 of this ordinance or an administratively granted authorization granted under Section Nine 9 of this ordinance , whichever is applicable Notwithstanding anything to the contrary in this section , no Special Use Permit shall be required for those non - commercial exceptions noted in Section Seven 7 , unless deemed in the public interest by the County B If constructed as required by permit , all legally permitted Wireless Telecommunications Facilities that existed on or before the effective date of this Ordinance shall be allowed to continue as they presently exist , provided however , that any visible modification of an existing Wireless Telecommunications Facility will require the complete facility and any new installation to comply with this Ordinance , as will anything changing the structural load C Any Repair and Maintenance of a Wireless Facility does not require an application for a Special Use Permit However , no additional construction or site modification will be permitted D Notwithstanding any other provisions of this section and all subparts thereof , the co - location and or shared use of antennas on existing telecommunication towers or other tall structures or compatible use structures , such as utility poles , water towers , and other towers , shall be exempt from the Public Hearing requirement otherwise required for a tower , and shall be subject only to an administrative review process by the County and its designee Section 7 Exclusions The following shall be exempt from this Ordinance A The County’s fire , police , County Sheriff’s or other public service facilities owned and operated by the County B Any facilities expressly exempt from the County’s siting , building and permitting authority C Over - the - Air reception Devices including the reception antennas for direct broadcast satellites DBS , multi - channel multipoint distribution wireless cable providers MMDS , television broadcast stations TVBS and other customer - end antennas that receive and transmit fixed wireless signals that are primarily used for reception , but not including microwave dishes D Facilities used exclusively for private , non - commercial radio and television reception and private citizen’s bands , licensed amateur radio and other similar non - commercial Telecommunications E Facilities used exclusively for providing unlicensed spread spectrum technologies , such as IEEE 80211a , b , g services eg Wi - Fi and Bluetooth where the facility does not require a new tower Section 8 Special Use Permit Application and Other Requirements for a New Tower or for Increasing the Height of the Structure to be Attached to A All Applicants for a Special Use Permit for Wireless Telecommunications Facilities or any modification of such facility shall comply with the requirements set forth in this Ordinance The County Commission is the officially designated agency or body of the County to whom applications for a Special Use Permit for Wireless Telecommunications Facilities must be made , and that is authorized to review , analyze , evaluate and make decisions with respect to granting or not granting or revoking special use permits for Wireless Telecommunications Facilities The County may at its discretion delegate or designate the County Planning Commission or other official agencies or officials of the County or expert consultants to accept , review , analyze , evaluate and make recommendations to the County Commission with respect to the granting or not granting or revoking Special Use Permits for Wireless Telecommunications Facilities B The non - refundable Application fee for attaching to an existing Tower or other structure without increasing the height shall be as set forth in the County’s Schedule of Fees C All Applicants shall closely follow the instructions for preparing an Application that shall be provided prior to the submittal of an Application or at any time upon request Not closely following the instructions without permission to deviate from such may result in the Application being returned without action and forfeiting the Application fee , but not the escrow deposit D When placing wireless facilities on government - owned property or facilities , only non - commercial wireless carriers and users are exempt from the permitting requirements of this Ordinance E The County may reject applications not meeting the requirements stated herein or which are otherwise not complete F No Wireless Telecommunications Facilities shall be installed , constructed or modified until the Application is reviewed and approved by the County , and the Special Use Permit has been issued G Any and all representations made by the Applicant to the County on the record during the Application process , whether written or verbal , shall be deemed a part of the Application and will be deemed to have been relied upon in good faith by the County Any verbal misrepresentation shall be treated as if it were made in writing H An Application for a Special Use Permit for Wireless Telecommunications Facilities shall be signed on behalf of the Applicant by the person preparing the same and with knowledge of the contents and representations made therein and attesting to the truth and completeness of the information I The Applicant must provide documentation to verify it has the right to proceed as proposed on the Site This requires an executed copy of the lease with the landowner or landlord or a signed letter of agency acknowledging authorization If the applicant owns the site , a copy of the ownership record is required J The Applicant shall include a statement in writing 1 That the applicant’s proposed Wireless Telecommunications Facilities shall be maintained in a safe manner , and in compliance with all conditions of the Special Use Permit , without exception , unless specifically granted relief by the County in writing , as well as all applicable and permissible local codes , ordinances , and regulations , including any and all applicable County , State and Federal Laws , rules , and regulations ; andPage274 February 5 , 2007 - 6 00 pm Continued 2 That the construction of the Wireless Telecommunications Facilities is legally permissible , including , but not limited to the fact that the Applicant is authorized to do business in the State K Where a certification is called for in this Ordinance , such certification shall bear the signature and seal of a Professional Engineer licensed in the State L In addition to all other required information as stated in this Ordinance , all applications for the construction or installation of new Wireless Telecommunications Facilities or modification of an existing facility shall contain the information hereinafter set forth Note that an Applicant will be granted permission for anything that it can conclusively prove the technical need for , but that there is often a significant difference between ‘ need ’ and ‘ want ’ or ‘ desire ’ For example , an assertion that the ‘ need ’ is based on an Applicant’s own design criteria shall not suffice to prove the technological need for what is requested For purposes of permitting under this Ordinance , ‘ need ’ shall mean what is technologically needed for the equipment to function as designed by the manufacturer and that anything less will result in prohibiting or acting in a manner that prohibits the provision of service as intended and described in the narrative of the Application Proof of Need for the Facility 1 A detailed narrative description and explanation of the specific objective s for the new facility , or the modification of an existing wireless facility , expressly including and explaining the purpose and need for the facility , such as coverage and or capacity needs or requirements , and the specific geographic area of intended coverage ; 2 Technical documentation that proves the need for the Wireless Telecommunications Facility to provide service primarily and essentially within the County Such documentation shall include a propagation study of the proposed site and all adjoining planned , proposed or existing sites , that demonstrates a significant gap in coverage and or , if a capacity issue is involved , to include an analysis of the current and projected usage traffic studies using generally accepted industry methods and standards so as to conclusively prove the need for what is proposed A desire to change , upgrade , or improve the technology or the service shall not be deemed a need in the context of this Ordinance ; 3 All of the modeling information ie data inputted into the software used to produce propagation studies , including , but not limited to any assumptions made , such as ambient tree height ; 4 A copy of the FCC license applicable for the intended use of the Wireless Telecommunications Facility , as well as a copy of the five 5 and ten 10 year build - out plan required by and filed with the FCC ; 5 The frequency , modulation and class of service of radio or other transmitting equipment ; 6 The maximum transmission power capability of all radios , as designed , if the Applicant is a cellular or functional equivalent carrier , or the maximum transmission power capability , as designed , of all transmission facilities if the Applicant is not a cellular or functional equivalent carrier ; 7 The actual intended transmission power stated as the maximum effective radiated power ERP both in dBm’s and watts ; Note In effect what is needed is the information that the Company used to make its business decision as regards the need for the facility in the first place , the need and reason for the requested location and the need for the height requested Ownership and Management 8 The Name , address and phone number of the person preparing the Application ; 9 The Name , address , and phone number of the property owner and the Applicant , including the legal name of the Applicant If the owner of the structure is different than the applicant , the name and all necessary contact information shall be provided ; 10 The Postal address and tax map parcel number of the property ; 11 A copy of the FCC license applicable for the intended use of the Wireless Telecommunications Facilities ; Zoning and Planning 12 The Zoning District or designation in which the property is situated ; 13 The size of the property on which the structure to be attached to is located , stated both in square feet and lot line dimensions , and a survey showing the location of all lot lines ; 14 The location , size and height of all existing and proposed structures on the property on which the structure is located and that is the subject of the Application ; 15 If attaching to an existing Tower , a site plan showing the vertical rendition of the Tower identifying all users and attachments to the Tower and all related fixtures , structures , appurtenances and apparatus , including height above pre - existing grade , materials , color and lighting ; 16 If attaching to a building or other structure , a site plan showing the proposed attachments and all related fixtures , structures , appurtenances and apparatus , including height above the roof or balustrade , whichever is appropriate ; 17 The azimuth , size and center line height location of all proposed and existing antennas on the supporting structure ; 18 The number , type and model of the Antenna s proposed , along with a copy of the specification sheet s for the antennas ; The Type , locations and dimensions of all proposed and existing landscaping , and fencing ; 19 The number , type and design of the Telecommunications Tower s and Antenna s proposed and the basis for the calculations of the Telecommunications Tower’s capacity to accommodate multiple users ; 20 The applicant shall disclose in writing any agreement in existence prior to submission of the Application that would limit or preclude the ability of the Applicant to share any new Telecommunication Tower that it constructs ; SafetyPage375 February 5 , 2007 - 6 00 pm Continued 21 If attaching to an existing Tower , the age of the tower in years , including the date of the grant of the original permit or authorization for the Tower ; 22 If attaching to an existing Tower , a description of the type of tower , eg guyed , self - supporting lattice or monopole ; 23 If attaching to an existing Tower , the make , model , type and manufacturer of the Tower and the structural design calculations , certified by a Professional Engineer licensed in the State , proving the tower’s capability to safely accommodate the facilities of the Applicant without change or modification ; 24 If any change or modification of the Tower or other structure to be attached to is needed , a detailed narrative explaining what changes are needed , why they are needed and who will be responsible to assure that the changes are made ; 25 If the structure proposed to be attached to is a Tower that has not previously been permitted under this Law , or unless the Applicant can provide proof that this was provided at the time of the initial application for the Tower or other structure , the Applicant shall provide a copy of the installed foundation design , as well as a geotechnical sub - surface soils investigation , evaluation report and foundation recommendation for the tower site or other structure ; 26 If increasing the height of an existing structure , or a Tower that is five 5 years old or older , or for a guyed Tower that is three 3 years old or older , a copy of the latest ANSI Report done pursuant to the latest edition of ANSI - EIA TIA 222F – Annex E for any self - supporting Tower If an ANSI report has not been done pursuant to the preceding schedule , an ANSI report shall be done and submitted as part of the Application No Building Permit shall be issued for any Wireless Facility where the structure being attached to is in need of remediation , unless and until all remediation work needed has been completed or a schedule for the remediation work has been approved by the County Planning Department ; 27 If not attaching to an existing Tower , a Structural Report signed by a Professional Engineer licensed to do business in the State and bearing that engineer’s currently valid stamp , showing the structural adequacy of the structure to accommodate the proposed Wireless Facility s , including any equipment shelter , unless the equipment shelter is located on the lowest floor of a building ; 28 If attaching to a structure and thereby increasing the height of the structure , other than a Tower , to which the public has or could reasonably have or gain access to , documentation shall be provided , including all calculations , proving that the potential exposure to RF Radiation ie NIER or Non - Ion Emitting Radiation , will be in compliance with the most recent Federal Communications Commission regulations governing RF Radiation and exposure thereto , and further denoting the minimum distance from any antennas an individual may safely stand without being exposed to RF radiation in excess of the FCC’s permitted standards and any portion s of the structure that would be exposed to RF radiation in excess of the FCC’s permitted standards In compliance with the FCC’s regulations , in such an instance the RF Radiation from all wireless facilities at that location shall be included in the calculations to show the cumulative effect on any area of the building or structure deemed accessible by the public or workers Such report or analysis shall be signed and sealed by a Professional Engineer licensed in the State ; or 29 In an instance involving a Tower where the new Wireless Facilities will be ten 10 meters or more above ground level , signed documentation such as the FCC’s “ Checklist to Determine whether a Facility may Categorically Excluded ” shall be provided to verify that the Wireless Telecommunication Facility with the proposed installation will be in full compliance with the current FCC’s RF Emissions regulations If not categorically excluded , a complete RF Emissions study is required to enable verification of compliance , pursuant to subsection E 21 of this section , including providing all calculations so that such may be verified ; 30 In certain instances , the County may deem it appropriate to have an RF survey of the facility done after the construction or modification and activation of the Facility , such to be done under the direction of the County or its designee , and an un - redacted copy of the survey results provided , along with all calculations ; 31 If any section or portion of the structure to be attached to is not in compliance with the FCC’s regulations regarding RF radiation , that section or portion must be barricaded with a suitable barrier to discourage approaching into the area in excess of the FCC’s regulations , and be marked off with yellow and black plastic chain and striped warning tape , as well as placing RF Radiation signs as needed and appropriate to warn individuals of the potential danger ; 32 A signed statement that the Applicant will expeditiously remedy any physical or RF interference with other telecommunications or wireless devices or services M The applicant will provide a written copy of an analysis , completed by a qualified individual or organization , to determine if the proposed new Tower or existing structure intended to support wireless facilities is in compliance with Federal Aviation Administration Regulation Part 77 and if it requires lighting This requirement shall also be for any existing structure or building where the application increases the height of the structure or building