Laserfiche WebLink
Zoning Bulletin March 25, 2015 1 Volume 9 1 Issue 6 <br />The plans for the proposed cell tower utilized a monopine design. Such a <br />design is intended to give the tower the appearance of a tall pine tree. <br />SprintCom maintained that under that design, the cell tower qualified as a <br />"concealed wireless communications facility" ("WCF") under the City's <br />Unified Development Ordinance ("UDO"). As a WCF, the cell tower would <br />be subject only to an administrative site plan approval process. <br />The UDO defined a WCF as a structure that is "not readily identifiable" <br />'T as a wireless communications facility and is designed to be compatible with <br />existing and proposed uses on a site. The UDO gave examples of WCFs, <br />including a "tree." The UDO also defined a nonconcealed WCF as "one that <br />is readily identifiable such as a monopole or lattice tower." <br />In July 2012, the Durham City -County Development Review Board <br />("DRB") approved SprintCom's application. In doing so, it concluded that <br />the proposed monopine tower qualified as a WCF. <br />A group of homeowners (the "Homeowners") whose backyards were <br />across the street from the Church property appealed the DRB's decision. <br />They argued that the proposed monopine tower, which would be twice as <br />high as the surrounding trees on the Church property and would have a base <br />five times wider than the diameter of the largest trees present in the area, did <br />not meet the UDO's definition of a concealed WCF. The Homeowners <br />contended that based on its size and visibilities from their homes, the <br />proposed monopine could not possibly meet the UDO's definition of con- <br />cealed WCF. Thus, since it did not qualify as a WCF, the Homeowners <br />contended that SprintCom needed a minor special use permit for the tower, <br />which required a quasi-judicial evidentiary hearing. <br />The City's Board of Adjustment disagreed with the Homeowners. It up- <br />held the interpretation that the proposed monopine met the definition of a <br />concealed WCF under the UDO. <br />The Homeowners again appealed. They argued that the Board of <br />Adjustment's determination that SprintCom's proposed monopine tower <br />qualified as a concealed WCF as defined by the UDO was "both arbitrary <br />and capricious, and erroneous as a matter of law." <br />DECISION: Judgment of superior court affirmed. <br />The Court of Appeals of North Carolina held that SprintCom's proposed <br />WCF met the UDO 's definition of concealed WCF, and thus did not require <br />a special use permit. <br />In so concluding, the court looked at the plain language and intent of the <br />UDO. The court found that the relevant section of the UDO was intended to <br />"incentivize[ ] the construction of concealed WCFs." The court rejected the <br />Homeowners' argument that SprintCom's proposed monopine was "readily <br />identifiable" as a WCF and thus did not meet the UDO definition of "con- <br />cealed WCF." The court found that just because the monopine tower would <br />be "visible," it did not mean it would be "readily identifiable." Rather, the <br />court found that the monopine would have the appearance of "an unusually <br />tall tree," and that there was no evidence that a typical person's reaction to <br />the site of "an unusually tall tree" would be to conclude it was a WCF. <br />©2015 Thomson Reuters 5 <br />