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Edge Wireless tower and non-compliance with the existing Tetonia code

Decision Makers: Tetonia City Council

Topic: Edge Wireless tower and non-compliance with the existing Tetonia code

Tetonia City Council
105 Perry Avenue
Tetonia, Idaho 83452

April 7, 2008

Re: Edge Wireless tower and non-compliance with the existing Tetonia code.

Dear members of the Tetonia City Council,

It has come to my attention that since the city property on which the city is planning to allow the Edge Wireless cell tower is designated as “A” Agricultural Zone. The following zoning regulations apply in this zone:

Chapter 1, Section 12
A.    Uses Allowed:
    1.    Agriculture;
    2.    Golf Course;
    3.    Single and two-family dwellings as regulated in the R-1 Zone with the exception that               the minimum lot size for such uses shall be one-half (1/2) acre;
    4.    Accessory uses as regulated in Section 3(F);
    5.    Home occupations, as defined in Chapter 4, Section 5.

Clearly, according to the zoning code, a telecommunications tower is not an allowed use in this Agricultural Zone. It is also not conditionally permitted in this zone either:

Chapter 1, Section 12
B.    Conditional Uses Permitted:
    1.    Airport;
    2.    Cemetery;
    3.    Commercial kennel, animal hospital;
    4.    Broadcasting tower for radio or television
    5.    Mining, dredging, and excavation of sand, dirt, gravel, or other         aggregate;
    6.    Public Utility installation;
    7.    Private amusement park, ball park, race track, or similar uses;
    8.    Public Building, school, hospital or church.

Thus, a telecommunications tower is not listed as an allowed or a permitted conditional use in this zone. It should be noted however, that Amendment 3 to the zoning code provides the following:

    Uses not specified within use districts are prohibited unless             determined by the Planning Commission or its authorized             representation to be similar in nature to those specified.

It could be argued a telecommunications tower is “similar in nature” to item number four: “Broadcasting tower for radio or television”.  However, the code requires that this type of  fact finding be made by the Planning Commission.  If the planning commission so finds, in accordance with Amendment 3, that a telecommunications tower is a permitted conditional use in the Agricultural zone, then the procedure for obtaining a conditional use permit must be followed in accordance with Chapter 3, Section 2, Conditional Use Permit Procedure.  

However, the issue of height will also have to be resolved if the proposed telecommunications tower is to go forward is compliance with the height restrictions in the zoning code:

Chapter 1, Section 12
C.    Height Restrictions
    Any building or structure or portion thereof hereafter erected shall         not exceed two and one-half (2-1/2) stories; or thirty-five (35) feet         in height unless a greater height is approved by Conditional Use         Permit.  

As proposed, the Edge Wireless cell tower is 120 feet high. That is 85 feet in excess of the zone's height restrictions and therefore on the basis of height would require a conditional use permit.  

The issue of setback requirements may also need to be reviewed, as the code requires a 30 feet setback from the right-of-way line of the street, a 10 feet setback from any side property line and a rear yard depth of 20 feet for any structure erected in the “A” zone. On the site plans that the council reviewed on March 10th, the tower foundation (which would be considered “a portion thereof” of the structure) is set back only 5 feet from the lot line on two sides.  

The council might also want to consider that as part of the current process of updating the code, telecommunications towers be explicitly addressed.  VARD would urge the council to consult the examples of ordinances dealing with cell towers previously submitted by VARD, which reflect the steps being taken by Driggs and other municipalities around the country to regulate the installation of telecommunications towers.  

VARD respectfully submits this letter as a resource to the Tetonia city council to assist them in carrying out their charge of upholding the Tetonia code for good of the residents of Tetonia.

Sincerely,

Kim Billimoria
Communications & Education Director
Valley Advocates for Responsible Development

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