Planning and Zoning Commission Meeting

Meeting Agenda

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Meeting Minutes

UNOFFICIAL DRAFT
RECORD OF PROCEEDINGS
MINUTES OF THE PLANNING AND ZONING COMMISSION MEETING
CITY OF BALLWIN – 300 PARK DRIVE

STATEMENTS ATTRIBUTED TO INDIVIDUALS IN THIS “DRAFT” ARE NOT VERBATIM QUOTES.  MINUTES OF MEETINGS ARE REPORTED IN SUMMARY AND NOT REPORTED VERBATIM.  THIS IS AN “UNOFFICIAL DRAFT VERSION” OF THE MEETING MINUTES.  DRAFT VERSIONS OF MINUTES ARE SUBJECT TO REVIEW, MODIFICATION, AND APPROVAL OF THE COMMISSION.

May 3, 2010

The meeting of the Planning and Zoning Commission was called to order by Chairman Michael Wind at 7:00 p.m.  Members in attendance were:
 
PRESENT                                                                              ABSENT
Chairman Michael Wind 
Secretary Frank Karr 
Commissioner Mike Utt 
Commissioner Chris Wright 
Commissioner Sue Theodore 
Commissioner John Schwent 
Commissioner Pat Apel 
Commissioner Mark Weaver 
Alderman Jimmy Terbrock 
Mayor Tim Pogue  
Assistant City Administrator Thomas Aiken 
City Engineer Gary Kramer 
City Attorney Robert Jones 

Swearing In of Commission Members

Mr. Michael Utt, 248 Ramsey Ln (Ward 1), was sworn in by Assistant City Administrator Thomas Aiken.  Mr. Utt replaces Mr. Pat Buerhle, whose term expired.  

Mrs. Sue Theodore, 620 Log Hill Ct (Ward 2), was sworn in by Assistant City Administrator Thomas Aiken.  Mrs. Theodore was reappointed to the Commission by the Board of Aldermen.  

Approval of Minutes

A motion was made by Secretary Karr and seconded by Mayor Pogue to approve the minutes of the April 5, 2010 meeting of the Planning & Zoning Commission as submitted.  The motion received unanimous approval from the Commission members present. 

SUE 10-02 – Special Use Exception Plan Amendment
  Czechin Tower SUE Amendment, 870/876 Reinke Road, Ballwin MO  63021
  Petitioner:  Mr. Steve Ward, Clearwire Communications for T-Mobile, Swansea IL 62226

Commissioner Utt stated that he is employed by AT&T Mobility, a competitor of the petitioner.  Mr. Utt stated that neither he nor his employer have any financial interest in any of the towers that have petitions before the Commission at this meeting.  City Attorney Jones said that as long as Commissioner Utt be-lieves there is no conflict of interest, has no financial interest in the subject of the petitions, and has dis-closed his employment situation; there is no conflict of interest. 

Mr. Steve Ward addressed the Commission on behalf of Clearwire Communications, stating that Clear-wire is doing a wireless internet build throughout the area, utilizing existing structures. He said that he is requesting approval to locate their antenna system on the existing tower at 870-876  Reinke Rd, which is an 80 foot stealth communications structure.  Mr. Ward said that means it is a 68’ tower topped by a 12’ section of canisters, currently occupied to capacity by two users – Sprint and Cricket.  There is no room inside the tower for additional antennas.  Clearwire is proposing to add three panel antennas and a small microwave dish to the exterior of the tower in a tight array.  A shroud could be added to shield the anten-nas from sight and retain the tower’s disguised support structure designation.  Mr. Ward said that another option is to extend the height of the tower. Mr. Ward distributed pictures of towers with the options he discussed. 

Commissioner Utt asked if the petitioner would consider a tower replacement so that the antennas could be placed inside.  Mr. Ward said that is a possibility, but the petitioner would ask for more height to justi-fy the expense of this option.  It is costly because they have to keep the existing carriers on air.  Mayor Pogue agrees with the recommendation of the petition review report that the status of disguised support structure be retained. 

Commissioner Apel asked if there is a height limit on these towers.  City Planner Aiken said that by the special use exception process, it could theoretically go to any height.  He said the original SUE that was granted allowed for an 80’ tower, but there is nothing that would preclude a taller tower if that was deemed the most appropriate solution.  City Attorney Jones concurred with this. 

Commissioner Apel asked Mr. Ward how much height would be added with another canister.  Mr. Ward said that it would be a minimum of a six feet extension to add one additional carrier.  Mr. Utt said that he feels it would be better to replace the tower with a beefier tower to accommodate an additional carrier on the inside.  He said there are several carriers that would need a canister at least 10 feet tall. 

Mayor Pogue asked if the size of the current service yard would fit an additional provider.  Mr. Ward said it would if it were a carrier that needs a small space, such as the 7’x7’ space used by Clearwire.

Chairman Wind agreed with Mayor Pogue that the stealth status of the tower should be retained.  He does not like the shroud.  Mr. Ward said that additional shields or fins could be added to help disguise the shroud.  Mr. Ward offered to hold over the petition to allow the tower owner to provide information on tower replacement and/or design changes. 

Chairman Wind opened the public hearing and asked if there were any proponents wishing to speak in favor of the petition.  There were none.  Chairman Wind asked if there were any opponents to speak in opposition to the petition.

John Wohler, 128 Windy Acres Estates Dr, addressed the Commission as a trustee of Windy Acres subdivision.  He believes that a new notice should be published, stating that the size or height of the tower may be considered.  He is in favor of tabling the petition so that more res-idents can attend the hearing.

Walt Young, 634 Lemonwood Dr, said that he feels the public hearing should be held over until the new plan is presented.
 
Commissioner Apel made a motion to hold over the public hearing for Petition SUE 10-02 to the June 7, 2010 meeting of the Planning & Zoning Commission.  Mayor Pogue seconded the motion, which received unanimous approval from the Commission members present.

SUE 10-03 – Special Use Exception
  Golf Clubhouse Cell Tower SUE, 333 Holloway Rd, Ballwin MO  63021
  Petitioner:  Ms. Tabitha Riggle, SSC for Tower Co., 701 Emerson Rd #333, Creve Coeur MO 63141

Mr. John King addressed the Commission on behalf of Tower Co.  He stated that the City of Ballwin wants the petitioner to consider another site on the golf course for the tower.  He asked that Petition SUE 10-03 be tabled until the next meeting of the Planning & Zoning Commission.
Chairman Wind asked for clarification.  Mayor Pogue said that he walked the site with Parks Director Linda Bruer and City Planner Aiken to look at a different location farther into the golf course rather than have it directly on Holloway Road.  Mr. King said that the new proposed location at the end of Coronado Drive is 200-300 yards from the original proposal, but is still within the location circle required by the peti-tioner.

Mayor Pogue asked City Planner Aiken if both sites can be posted in the interest of saving time for the petitioner.  Mr. Aiken said this can be done and then both sites can be addressed at the next meeting.  City Attorney Jones agreed.  Mayor Pogue asked the petitioner to consider a smaller service yard for the proposed location. 

Chairman Wind opened the public hearing and asked if there were any proponents wishing to speak in favor of Petition 10-03.  There were none.  Chairman Wind asked if there were any opponents to speak in opposition to the petition.

John Wohler, 128 Windy Acres Estates Dr, addressed the Commission as a trustee of Windy Acres subdivision.  He is concerned about poor vegetation maintenance.  He suggests putting equipment inside of a building rather than an open enclosure.

Kathy Ehrhardt, 338 Holloway Rd, is opposed to this tower in a residential area.  They will look out of their picture window right at the proposed tower.  She feels that a tower is unne-cessary at this location because there is no problem with cell phone reception.  Ms. Ehrhardt submitted a petition signed by area homeowners who are in opposition to the proposed tower at this location.

Beth Hawkins, 237 Country Creek Ct, is opposed to the construction of a cell tower at this loca-tion.  She feels the cell tower should be located along Manchester Road.

Mayor Pogue made a motion to hold over the public hearing for Petition SUE 10-03 to the June 7, 2010 meeting of the Planning & Zoning Commission.  Commissioner Weaver seconded the motion, which re-ceived unanimous approval from the Commission members present.

SUE 10-04 – Special Use Exception
  Ferris Park Cell Tower SUE, 500 New Ballwin Rd, Ballwin MO  63021
  Petitioner:  Ms. Tabitha Riggle, SSC for Tower Co., 701 Emerson Rd #333, Creve Coeur MO 63141

Mr. John King addressed the Commission on behalf of Tower Co., requesting approval for the construc-tion of an 85’ cell tower in Ferris Park.  This tower would accommodate at least three users.  The tower will be painted black and will hold three antennas and one dish within the structure.  It could be a flagpole or just a tower.  Mr. King said all the recommendations in the petition review report will be met.  He said that the enclosure can be added to and will match the existing building.  Mr. King said that the petitioner would provide additional lighting as necessary to deter vandalism.

Mayor Pogue noted the amendments on the drawings submitted by the petitioner at this meeting were the addition of lighting and landscaping.   Ms. Riggle also pointed out the matching of the existing building.  Commissioner Utt asked about the length and diameter of the canisters for the proposed tower.  Mr. King said they are 42” long, and 30” in diameter.  Mr. Utt asked if the petitioner has any objection to making them 10’ canisters that would be able to accommodate other users that need that size.  Ms. Riggle said the petitioner wants to make the tower as co-locatable as possible, so that will probably be acceptable.

Chairman Wind asked if the Parks Department is agreeable to the proposed landscape design.  City Plan-ner Aiken said that as this is the first time it has been submitted, the Parks Department has not had a chance to review the landscaping plan.  Chairman Wind said this should be approved by the Parks De-partment before final approval by the City of Ballwin.  He asked who will be responsible for the mainten-ance of the landscaping.  Mr. Aiken said that when this type of structure is on City property, the City gen-erally maintains the landscaping.  Chairman Wind asked if the cost to maintain the vegetation would be included in the lease agreement.  Mr. King said that it would be.  Mayor Pogue pointed out that the plan states that Tower Co would be responsible.  Ms. Riggle said that it can be done however the City prefers.  Mayor Pogue said he would like to see a better mixture of higher and lower vegetation so that it will blend in with the surrounding area.

Commissioner Utt asked at what frequency the towers operate.  Ms. Riggle said she doesn’t know, be-cause she works more with the cellular side and this is for data.  Mr. Utt asked how far the tower sites are typically spaced.  Ms. Riggle said the span is much shorter for data; usually a .2 mile radius. 

Secretary Karr asked if cell towers are susceptible to wind damage.  Mr. King said they are constructed so that they will break in the middle and fall in on themselves.  Mr. Karr expressed concern about recreation-al items that may fall into the open enclosure, leading to unauthorized access.  Mr. King said the petitioner will build an enclosed structure.

Alderman Terbrock read from an article that referenced the Telecommunications Act of 1996, Section 704:  “although communities reserve the rights on general placement, construction or modification of towers, they cannot ban them outright, nor can they unreasonably discriminate among providers or set zoning regulations based on environmental effects of radio frequency emissions to the extent that such facilities comply with the FCC concerning such emissions.”

Commissioner Utt asked if the petitioner would consider a monopine or tree, rather than a regular stealth tower?  Mr. King said the petitioner would be willing to consider that, but it might affect the amount of money that would be paid on the lease.  Chairman Wind said that he personally feels that the “trees” are more obtrusive than a regular stealth tower, because they are so much taller than the natural tree line.

Chairman Wind opened the public hearing and asked if there were any proponents wishing to speak in favor of Petition 10-04.  There were none.  Chairman Wind asked if there were any opponents to speak in opposition to the petition.

Donna Schaefer, 672 Rustic Valley Drive, does not want a cell tower in her back yard.  The park is very small and she feels the proposed tower is too close to the houses in the area.

There were no other opponents and Chairman Wind declared the public hearing closed.  Mayor Pogue said that per City Planner Aiken, the petitioner will need to submit a new site plan if an enclosed structure is built.  Does the Commission want the new site plan to come before them or can it go to the Board of Aldermen?  Chairman Wind said that if the Planning & Zoning Commission includes the requirement of an enclosed structure in its recommendation, the new site plan can be presented to the Board of Aldermen for the final review.

Chairman Wind made a motion to recommend approval of Petition SUE 10-04 to Board of Aldermen, with the following stipulations agreed to by the petitioner:  upgraded landscaping, inclusion of a land-scape allowance in the lease, providing an enclosed structure for equipment with a new site plan, com-pliance with petition review report recommendations, and the use of 10’ canisters.  Commissioner Wright seconded the motion. A voice vote was taken with the following result:  Aye – Utt, Wright, Schwent, Wind, Apel, Weaver, Terbrock, and Pogue. Nay – Karr.  The motion passed 8-1.

Z 10-01 – Zoning Ordinance Change
  (C-1 Zoning District Regulations Change)  Agricultural Sales Regulations
  Petitioner:  City of Ballwin, 14811 Manchester Rd, Ballwin MO 63011

City Planner Aiken distributed a copy of the ordinance drawn up by City Attorney Jones.  Mr. Jones said the individual lettered paragraphs are the same as what was in the memo that was distributed at the April 5, 2010 meeting packet.  The biggest areas for consideration are that agricultural sales would be an allowed use in the C-1 district, rather than allowed only by special use exception, and the definition of agricultural products.  Mr. Aiken noted that he had received two calls regarding events that would have fallen under the provisions of this ordinance had it been in place.

Chairman Wind asked if there is anything that the City needs to do in regards to sanitary requirements.  City Planner Aiken said there is a provision in the ordinance about compliance with other agencies and jurisdictions, which would cover those concerns.

Commissioner Weaver asked if a situation such as a “fall festival” with entertainment and face-painting would be covered by this ordinance.  City Planner Aiken said the parameters of the ordinance are intended to keep events that fall under these regulations from becoming a flea markets or carnival type events.  Mayor Pogue noted that a fall festival would be considered a special event. 

Alderman Terbrock asked how City Planner Aiken arrived at the distance of 250 linear feet from any residential use.  Mr. Aiken said he simply felt this is a reasonable distance, but if the Commission feels that it should be more, it can be changed.

Alderman Terbrock made a motion to recommend approval of Petition Z 10-01 to Board of Aldermen.  Commissioner Utt seconded the motion, which received unanimous approval from the commission members present.

Z 10-02 – Zoning Ordinance Change
  (Sign Code Regulations Change)
  Petitioner:  City of Ballwin, 14811 Manchester Rd, Ballwin MO 63011

City Planner Aiken gave a brief summary of the events that brought about the proposed changes.  He said that the current Ballwin sign code was written in 1982 and has been changed very little from that time.  The Board of Aldermen was approached by the owner of a service business in one of the plazas who had received a violation notice for an illegal sign on the sidewalk in front of the store.  She said she felt the City’s sign regulations were doing her a disservice by not allowing this sign.  The Board of Aldermen established a committee, of which Alderman Terbrock was a part, to look into the sign code regulations, especially those regarding temporary signs. 

The old regulations allowed temporary signs up to 60 days per year, but it was limited to two thirty-day increments.  The Board committee felt there needed to be more flexibility in this area, to allow for shorter time frames as well as some of the other types of temporary signs that are currently not allowed.  The proposed changes include allowing wind-operated signs and dancing balloons; however, the signs are still limited to 32 square feet.  Businesses are still limited to having temporary signs up 60 days per year, but under the proposed changes, have more flexibility in how they apportion those days.  The proposed regu-lations also helps the City with enforcement issues, by allowing the City to cite business owners who do not comply.

Commissioner Weaver asked about vehicles with signs on them.  Mr. Aiken said banners attached to ve-hicles are not currently allowed and would not be allowed under the proposed regulations, but signage that is allowed to be painted on the vehicle is considered part of the vehicle.     

Chairman Wind asked about “human signs” where a person holds a sign and walks in front of a business or stands at an intersection with a sign.  City Planner Aiken said there is a different set of regulations that come into play for that situation.  The City of Wentzville recently passes legislation regarding this type of signage, and other cities are considering it.  The City of Ellisville has never allowed such signs.  There may be legal ramifications to banning this type of signage; namely freedom of speech issues.  City Attorney Jones said that when people are fully in the public right-of-way as opposed to on private property, there are limitations on what the City can do in terms of regulating that type of commercial free speech.  Mr. Jones said he reviewed the legislation from Wentzville and passed it on to the Board of Aldermen for discussion.  At that time, the Board did not direct the City Attorney and staff to look at this particular legislation.  City Attorney Jones said that the Planning & Zoning Commission is certainly within its rights to recommend that the Board to consider this legislation.

Mayor Pogue said that the Board wanted to know what the Planning & Zoning Commission felt regarding this type of signage.  Chairman Wind said his opinion is that it’s getting out of control, and it is a distraction for drivers and a safety hazard.  Mayor Pogue noted that the Wentzville legislation had strong emphasis on safety issues, as well as the commercial aspect of the signs, rather than having personal opinions on the sign.  City Attorney Jones agreed, saying that if the City of Ballwin considers such legislation, it must be “content neutral” and emphasis the health and safety aspects.

Alderman Terbrock said that he would prefer to wait and see if anyone challenges the Wentzville legislation before the City of Ballwin takes any action.

Commissioner Weaver pointed out that these are Ballwin businesses that bring in tax dollars, and he feels that the City should be flexible.  Alderman Terbrock said that most of the businesses that employ the “human signs” are service providers and do not generate any sales tax revenue.  Commissioner Weaver said they could be attracting customers to other businesses that do generate sales tax.  Mayor Pogue said that one of the reasons that this was sent to Planning & Zoning Commission was so that business owners could attend the public hearing and express their concerns and comments.

Chairman Wind opened the public hearing and asked if there were any proponents wishing to speak in favor of Petition Z 10-02. 

Bob Candice, Candicci’s, 100 Holloway Rd, believes that the current sign code is too stringent.  He said it has been difficult to let the public know that they have live entertainment under the current regulations.  He said signage is very important to his business. 

Discussion was held regarding options that businesses have regarding signage.  Alderman Terbrock asked Mr. Candice about signage regulations in other cities where he owns restaurants.  Mr. Candice said that some cities are more strict; others are more lax.

There were no other proponents.  Chairman Wind asked if there were any opponents to speak in opposition to the petition.  There were none, and Chairman Wind declared the public hearing closed.  Commis-sioner Utt made a motion to recommend approval of Petition Z 10-02 to Board of Aldermen.  Secretary Karr seconded the motion, which received unanimous approval from the commission members present.

City Attorney Jones stated that there is no record of a public hearing being held for Petition Z 10-01.  He said it was advertized as a public hearing.  Mayor Pogue made a motion to reconsider Petition Z 10-01 and open it to a public hearing.  Alderman Terbrock seconded the motion, which received unanimous approval from the Commission members present.

Chairman Wind opened the public hearing and asked if there were any proponents wishing to speak in favor of Petition 10-04.  There were none.  Chairman Wind asked if there were any opponents to speak in opposition to the petition.  There were none, and Chairman Wind declared the public hearing closed. 

Alderman Terbrock made a motion to recommend approval of Petition Z 10-01 to Board of Aldermen.  Commissioner Utt seconded the motion, which received unanimous approval from the commission mem-bers present.
Other Business

City Attorney Jones gave an update on the Schnucks lawsuit.  City Planner Aiken gave a brief summary of items for upcoming agendas and noted that the July meeting falls on a holiday.  He said in this case, the meeting is usually moved to the following Tuesday. 

Adjournment

A motion was made by Alderman Terbrock and seconded by Mayor Pogue to adjourn the meeting.  The motion received unanimous approval, and the meeting was adjourned at 9:23 p.m.

Michael Wind, Chairman
Planning & Zoning Commission