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HomeMy WebLinkAboutMinutes__________________________________ Plan Commission Minutes 1 September 7, 2021 PLAN COMMISSION MINUTES September 7, 2021 PRESENT: Mamadou Coulibaly, Margy Davey, Michael Ford, Derek Groth, John Kiefer, Phil Marshall, Justin Mitchell, Thomas Perry, Kathleen Propp, EXCUSED: John Hinz STAFF: Mark Lyons, Planning Services Manager; Kelly Nieforth, Community Development Director; Justin Gierach, Engineering Division Manager / City Engineer; Steven Tomasik; Transit Operations Manager, Jim Collins, Director of Transportation, Brian Slusarek, Planner; Jeff Nau, Associate Planner; Steven Wiley, Associate Planner; Brandon Nielsen, Assistant Planner; Council Member Ford called the meeting to order at 4:00 pm. Roll call was taken and a quorum declared present. (Davey/Mitchell) I. ARCHITECTURAL BUILDING PLAN REVIEW FOR A PROPOSED TRANSIT CENTER BUILDING AT 110 PEARL AVENUE Site Inspections Report: No commissioners reported visiting the site. Staff report accepted as part of the record. The applicant is requesting an architectural building plan review for a new transit center building and other improvements located at the GO Transit Downtown Transit Center at 110 Pearl Avenue. Mr. Nielsen presented the item and reviewed the site and surrounding area as well as the land use and zoning classifications in this area. In 1989 the City of Oshkosh constructed the current Downtown Transit Center which is the subject site and is located at 110 Pearl Avenue, just south of High Avenue and on the corner of Market Street and Pearl Avenue. This parcel consists of the transit center and a public parking lot. The current building at this location does not provide public restrooms, fare kiosks, or a staff breakroom. The surrounding area consists of mostly commercial businesses with parking lots and some residential apartment buildings as well. The location of the proposed transit building is just to the west of an existing transit building and just to the north of the bus transfer station. The Plan Commission and architect had a workshop at the August 3rd, 2021 Plan Commission meeting to discuss the project and see if there were any major concerns. Plan Commission was supportive of the project so the applicant is requesting a formal architectural review of the proposed building. Staff recommends approval of the architectural design of the transit building with the findings and conditions as listed in the staff report. __________________________________ Plan Commission Minutes 2 September 7, 2021 Mr. Ford opened up technical questions to staff. Ms. Davey asked if they planning department shares the page in the ordinance that says there are preferred trees to use and if the city forester was involved in the landscaping. Mr. Lyons responded that during final site plan review they will have to call out what kind of maple, as an example Autumn Blaze maples are listed as overplanted and not recommended. When we get to the final step they will have to call out what species are being planted. Mr. Ford asked for any public comments and asked if the applicant wanted to make any statements. John Wallenkamp, Kueny Architects, made himself available for questions. The goal is to enhance the building with the existing structure. The roof is pretty heavy and they will address the landscaping species. Mr. Collins said that they are excited to develop this and the drivers are excited about having some break room space. It’s also an opportunity for the passengers and the public because it is going to update the area and make it look nicer and eliminate some tripping hazards and improve some safety concerns with some upgraded lighting and improved pavement and some repair to the concrete. Hopefully at some time we can upgrade it and offer some public waiting and public restrooms. It’s needed and overdue. There were no other public comments on this item. There were no public comments on this item. Mr. Ford closed public comments and asked if the applicant wanted to make any closing statements. There were no closing statements from the applicant. Motion by Davey to adopt the findings and recommendation as stated in the staff report. Seconded by Coulibaly. Mr. Ford asked if there was any discussion on the motion. Mr. Mitchell asked what the rationale was for the limited initial phase and not including public restroom and the other features. It would provide a valuable service to users. Mr. Collins replied that the limited scope is due to funding. They have a limited amount of ARPA funds and this is what they were able to do. On the current site, they are limited currently to our existing footprint, we don’t own any of the land adjacent to there so we are limited as to what we can do. That space doesn’t allow us to do more than what we proposed to do. __________________________________ Plan Commission Minutes 3 September 7, 2021 Mr. Mitchell asked if there is a staff restroom. Mr. Collins replied that there will be a two single stalled staff restrooms. That is what they have there currently as well. Mr. Mitchell said that at a minimum he would like to note that it’s disappointing that it’s not being included with the phase and it was included with the initial discussion we had that there would be public restroom features. What was the user engagement for the development of this plan. Were there sessions hosted for users or information given to provide feedback. Mr. Collins said there was a site selection study over the last two years. That was prior to receiving any ARPA funds. There was a company who performed this service and at that time we were looking at where would be the best location. They looked at a number of different locations throughout the city of Oshkosh and not just downtown. They had lots of stakeholder and public meetings and ultimately the Transit Advisory Board and Council evaluated the recommendations which were to stay on the current site due to cost considerations and the fact that any money used for transit has to be in use for 40 years when it comes to public buildings. COVID hit, and they were notified of ARPA funds and it was used for COVID mitigation strategies. They looked at what they needed immediately with the remaining funds. That is what led to this plan. There are always opportunities for public comment during Plan Commission and Transit Advisory Board meetings. They did the best they could with the funds they had. They consulted heavily with public safety and they do not recommend public restrooms. It’s a real safety concern for the general public and users unless you can have an open building with staff whenever the restrooms are open so they can help with any incidents and they do not have the room for it. They will evaluate it at a time when there are funds available. Mr. Mitchell asked if in phase 1 there was considerable planning involved in location, maybe not so much in design and amenities due to timing but you would come back at a later time with local invested funds and at that time is there a plan or a general idea in engaging users in feedback. Mr. Collins replied that we do have a few different options for expanding the transit center downtown. The architect has helped put together a few ideas, but nothing specific at this point. As far as funding goes, locally funded is up to the Council. With transit projects, we will seek out and apply for grants. Generally 80% of transit projects are funded federally and if we can seek a grant to do that. We still have a potential for ARPA funds in the future. There will be opportunity for public involvement if and when we get to that point. Mr. Mitchell asked if Appleton, Fond du Lac, Green Bay, Janesville have public restrooms or public amenities. Mr. Collins said that Fond du Lac has less than we do. Sheboygan built a new transit facility about 5 or 6 years ago and do not have public facilities. Appleton does, and they are working on a remodel. __________________________________ Plan Commission Minutes 4 September 7, 2021 Motion carried 9-0. II. PUBLIC HEARING: CONDITIONAL USE PERMIT REQUEST FOR A COMMUNICATION TOWER AT 0 BRADLEY ST REET Staff report accepted as part of the record. Site Inspections Report: Mr. Groth and Mr. Kiefer reported vising the site. The applicant is requesting a Conditional Use Permit for installation of a communication tower (cellular telecommunications tower). Mr. Slusarek presented the item and reviewed the site and surrounding area as well as the land use and zoning classifications in this area. Communication Tower land uses are permitted only through a Conditional Use Permit (CUP) in the Heavy Industrial District (HI) as regulated in Section 30-62 (C) of the Zoning Ordinance. Criteria used for Conditional Use Permits are located in Section 30-382 of the Zoning Ordinance. The subject site consists of a 9.86 acre parcel located on the east side of Bradley St., south of W 28th Ave. The site is currently being used for agriculture and has a Heavy Industrial (HI) zoning designation, while the 2040 Comprehensive Land Use Plan recommends Industrial use for the site. The site is surrounded predominantly by industrial uses along with an active railroad to the east. The applicant is proposing to install a cellular telecommunications tower which will consist of a 135’ tall monopole (136’ including lightning rod) with several antennas. Communication towers require a Conditional Use Permit in the Heavy Industrial (HI) district. The proposed cell tower will be accessed from Bradley Street with a 12’ wide access drive. The tower and associated equipment will be enclosed within a 50’ X 50’ fenced in area. The proposed cell tower is meeting all applicable setback, impervious surface and height requirements of the zoning ordinance. The proposed tower height has been approved by the Federal Aviation Administration (FAA). Communication towers must be enclosed by solid fencing at least 6' in height or a buffer yard with a minimum opacity of 0.4 and screened so that it is not accessible to the general public. Fence design, materials and colors shall reflect the character of the surrounding area. The plans include 6’ tall solid wood fencing (with access gate) surrounding the tower and related equipment. Staff is recommending a condition that final fencing plans be approved by the Department of Community Development. The Department of Public Works has noted that Bradley St. is proposed for street work in 2022 or 2023 and calculations for the culvert sizing will be required. The driveway apron shall be per the City of Oshkosh Standard Detail. Staff recommends approval of the proposed Conditional Use Permit for a communication tower at 0 Bradley St with the findings and conditions as listed in the staff report. Ms. Propp opened up technical questions to staff. __________________________________ Plan Commission Minutes 5 September 7, 2021 Mr. Mitchell asked if there is a broader city or regional plan or monitoring in place that looks at a broader picture beyond one lot. Mr. Lyons replied that cell towers are highly regulated through the federal and state governments in terms of location and the local municipalities’ ability to get involved in the placement of them. They do have to provide documentation to us that they have evaluated colocation options in the area before siting a new tower and they did provide the documentation. The federal and state regulations in these instances trump everything about what they are required to supply to us. Mr. Mitchell asked if there were a comprehensive communication system that we can access in relation to our communication system. Mr. Lyons replied that because of how it’s regulated it’s not something the local government is allowed to get involved with. We have a map showing where they are and that’s about it. Mr. Coulibaly asked if there is a buffer zone before the cell tower and the neighbors and if they have been notified. Mr. Lyons said they have been notified like they would with any other conditional use permit where we do send notices to neighboring properties. Ms. Propp asked for any public comments and asked if the applicant wanted to make any statements. Scott Littell; Harmoni Towers, said that they have petitioned the Plan Commission for the conditional use permit for 136 foot tall tower on Bradley St. They feel this is an ideal location, it is zoned heavy industrial and the neighboring properties are zoned heavy industrial for the most part. It is screened by mature trees and is close to residential areas which is a driver for cell phone carriers to be on the tower. They have also complied with the colocation maxim. Ms. Davey stated that this is currently being used as rented agriculture property and asked if they will continue to be allowed to farm around the rest of the plot. Mr. Littell confirmed they will be. Andrew Flowers; ATT Mobility, confirmed that Harmoni is their vendor that is in the process of seeking the CUP from Oshkosh. Last year Oshkosh gave ATT the ability to build another new tower on EAA’s property which turned out to be a great asset to their event. One of the items that we have here at ATT is long term strategic plan which is to keep increasing the capacity and coverage of EAA event and surrounding communities throughout the year and this facility will allow us to do that. It sits to the east of the airport and will be used heavily during the EAA events and will be used throughout the rest of the year to the community. It will have the newest technology on it and have First Net equipment for first responders. We’re excited to have this site __________________________________ Plan Commission Minutes 6 September 7, 2021 built. If we end up getting the approvals, it will be in the 2022 plan to build and we will try to complete it before EAA event in July of 2022. Kevin Pollard; SBA Communications, the owner of the existing tower located on 28th Ave. It’s about 500 feet from the tower that is being proposed. The existing tower has been at that site since 2006. ATT as a mobile service provider already has its equipment on that tower. The existing tower does have the capacity to facilitate upgrades to ATT’s equipment. We do object to the application for this permit for a number of reasons. One being that the state statute and the city’s ordinance is designed to promote colocation on existing towers, and I don’t agree with the sentiment that the city has no ability to regulate this. There’s a state statute that preempts certain factors that should not be considered but it doesn’t completely strip the city of the ability to regulate by conditional use permit whether or not the tower is appropriate as a conditional use and what the state statute and the ordinance requires is that the applicant demonstrates with evidence that there is an economic burden and a reason that it can’t collocate on the existing tower. I think there was a reference made to an affidavit or a statement, I haven’t seen that but I can tell you that ATT has not sought any reduction in rent or modifications to the existing lease on this tower. They completed an upgrade amendment and added additional equipment in 2019. The statute also requires that the applicant requesting a new tower evaluate the feasibility of colocation on an existing tower. We don’t think they’ve done that and they haven’t contacted SBA saying “hey we have issues with the existing tower”. I was intending to submit a radio frequency coverage comparison which we will provide after the hearing showing that the coverage is essentially the same on either tower. One of the factors of the conditional use permit in the city ordinance is whether the potential public benefit outweighs the potential adverse impacts. Since there already is a tower there, there essentially is no public benefit to adding a second tower. The statute and ordinance is designed to prevent this type of clustering so you don’t end up with a bunch of cell towers stacked right next to each other. There are obviously adverse visual effects, adverse effects on property value, and potential for interference so I would submit that the application does not comply with the conditional use factor that there be a public benefit outweighing a potential public harm and so for those two reasons we don’t believe that the application complies with the statutes and we object to the application on that ground. Paul Jonas; Michael Best & Friedrich LLP, said he is the attorney representing Harmoni Towers. Most if not all of the points that were raised by Mr. Pollard were addressed in both the sworn statement that was provided as required by statute by Mr. Tim Brennan of ATT and also in the support letter that was provided by Andrew Flowers who spoke earlier. First of all, it is not true that ATT has not reached out to SBA to try and negotiate more reasonable terms then those that are currently in place on the existing nearby tower. We included with the submission what we refer to as a toss letter, but it is a site specific letter that requests that SBA engages in some sort of reasonable negotiation to come to something closer to economic terms and functional terms that even begin to approach those that are offered by Harmoni. The reality is that the negotiation between SBA and ATT take place on a regional and national basis. Those discussions have been and continue to be ongoing. ATT has a decision to make. They can either remain on the SBA tower at terms that are millions of dollars more over the term of the lease or relocate to the proposed Harmoni tower which will save ATT said millions of dollars and importantly as noted in Andrew’s letter, will translate to lower rates charged to the citizens of Oshkosh and the surrounding area. __________________________________ Plan Commission Minutes 7 September 7, 2021 The idea that there is no public benefit to this tower would refute that statement. One of the many reasons that this proposed tower makes sense for both ATT, Harmoni and the city of Oshkosh is both the lease structure and the physical structure allow for the easy replacement upgrade of equipment as new technology becomes available. The whole idea is that this new tower is flexible so that when new technologies become available they can be applied to the tower quickly and easily and economically. The SBA tower offers none of those benefits and despite the efforts on ATT’s part, SBA is here today for one reason, to maintain their monopoly. This is an argument and discussion we’ve had in many municipalities throughout the state and discussion is always the same. With regard to 66.0404 which is the state statute that governs cell towers sighting, the requirement is that if the applicant is going to propose the new tower they have to explain whether or not they considered colocation, and if they didn’t why they didn’t, is it either economically burdensome, technologically not feasible or will not result in the same coverage and in fact we meet all three of those standards. I would suggest in the interest of ATT and Harmoni are of course to expand their business and to be in business, but as importantly they are to increase the coverage and service to the citizens of Oshkosh and I would further submit that none of those goals would be accomplished if SBA continued to remain the monopoly in this market. Mr. Coulibaly asked if there is any impediment to SBA’s business by the fact that ATT is acquiring a new tower besides losing ATT’s business as a renter. Mr. Pollard replied that no there is no other impediment. They are a competitor, but on the other hand, when SBA built these towers, they built them subject to local zoning laws and new towers are coming in and saying you can’t apply local zoning laws and you have to let us build a new tower. As a local government you can regulate where new towers are going. Mr. Jonas said another business impact for SBA is the fact that there might not be any other carriers on the current tower but if ATT were to leave and the tower become vacant, by the city of Oshkosh ordinance, the tower would have to come down after a year. This would be another motivation to try to make ATT stay on the tower despite it not being a good arrangement. There were no other public comments on this item. There were no public comments on this item. Ms. Propp closed public comments and asked if the applicant wanted to make any closing statements. Mr. Littell stated that they exceed all the requirements set forth in the ordinance for conditional use permit for this tower. Motion by Mitchell to adopt the findings and recommendation as stated in the staff report. Seconded by Davey. Ms. Propp asked if there was any discussion on the motion. __________________________________ Plan Commission Minutes 8 September 7, 2021 Mr. Mitchell said that each time a tower comes up there seems to be a legal trial of some sorts as to the merit of it. At the same time staff says there’s nothing we can do. Is there a step that can be added to this process that requests these statements ahead of time and can be added into the packet. Something that eliminates the fact that we are interpreting a law that we don’t have the ability to interpret. Mr. Lyons said they have had discussions with the attorneys office and what they have said is the documentation that we need has been submitted which is why we are recommending approval of the tower. Not sure what additional information would be required. No matter the situation you are going to have competing tower companies that are likely to come before you to make an argument of their opinion of the case. Our interpretation as the planning office and review of the documentation is that they meet the code requirements which is why we have recommend approval. Ms. Propp said this might be something that goes to courts if the city approves this application. There is still a dispute and if that is the ultimate solution. Mr. Lyons said that if either entity would choose to challenge it they are within their rights. As a municipality we have done our due diligence and our appropriate review. Mr. Mitchell asked if there is ever a scenario where proximity to existing towers makes any difference to the city. Mr. Lyons said that if the documentation can be provided that those three criteria that we’ve provided and discussed are relevant, the staff under our reading of the ordinance would still recommend approval to you. If they failed to do that, then we are well within our rights as a municipality to recommend a denial. If they have done their statutory requirements we would recommend approval of the tower. There is no basis for recommending denial at that point. Motion carried 9-0. III. SPECIFIC IMPLEMENTATION PLAN AMENDMENT FOR DRIVE THRU LANE ADDITION AT 1580 S KOELLER STREET Site Inspections Report: No commissioners reported visiting the site. Staff report accepted as part of the record. The petitioner requests an amendment to the Specific Implementation Plan approval for a drive thru lane addition at 1580 S Koeller Street. Mr. Slusarek presented the item and reviewed the site and surrounding area as well as the land use and zoning classifications in this area. The subject site is zoned Suburban Mixed Use District __________________________________ Plan Commission Minutes 9 September 7, 2021 with a Planned Development Overlay (SMU-PD) and consists of a 0.84 acre parcel, located on the east side of Koeller St. The subject site is used as a restaurant with drive thru (Culver’s) and the surrounding area consists of commercial uses. On August 23, 1994, the Common Council approved a Conditional Use Permit (CUP) & Planned Development (PD) for creation of 3 new lots, which includes the existing Culver’s restaurant site. Staff recommends approval of the Specific Implementation Plan amendment as proposed with the findings and conditions as listed in the staff report. Ms. Propp opened up technical questions to staff. Mr. Ford stated that the staff report noted that even with the loss of 11 spaces they still meet code requirements for parking. Just curious if there’s still room for employees to park or if they are being pushed to neighboring lot. Ms. Propp asked for any public comments and asked if the applicant wanted to make any statements. Chris McGuire; Culver’s, said that Culver’s did approved double drive-thrus for all existing locations at the beginning of 2021. This has worked out well and we found that they double drive- thru helps the guest experience for a quicker and smoother flow. There has been an increase of public sales. With the employee parking, we do believe we have adequate parking elsewhere. We understand the stipulations that include 20 points of landscaping around the new island, and if approved we’re hopeful to do this project yet this year. There were no other public comments on this item. There were no public comments on this item. Ms. Propp closed public comments and asked if the applicant wanted to make any closing statements. There were no closing statements from the applicant. Motion by Coulibaly to adopt the findings and recommendation as stated in the staff report. Seconded by Kiefer. Ms. Propp asked if there was any discussion on the motion. There was no discussion on the motion. Motion carried 9-0. __________________________________ Plan Commission Minutes 10 September 7, 2021 There being no further business, the meeting adjourned at approximately 5:06 pm. (Davey/Perry) Respectfully Submitted, Mark Lyons Planning Services Manager