Agenda - Planning Commission - 10/04/2007

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September 1,20071 Volume 1 I No. 17 accordance with these setback requirements, but the smallest variance request was still for more than 21 feet. The largest request was for a variance of more than 60 feet. NeighboriIlg property owners in the residential zone attended the hearing and opposed the tower's construction. The neighbors claimed that there were safety and aesthetic reasons for their opposi- tion to the tower. For a special use permit to be granted the commis- sion had to consider, among other things, whether the use would: promote the public health, safety and general welfare, if located where proposed and developed and operated according to the plan as submitted; maintain or enhance the value of contiguous property, or that the use was a public necessity; and be in compliance with the general plans for the physical development of the area. lTItimately, the commission voted to deny the permit, finding that: 1) the proposed tower would not promote public health, safety, and welfare; and 2) the requested variances would place the tower too close to neighboring property lines. Alltel appealed the coi:IJ.IIlissioner's decision to court. The lower court, while disagreeing w-ith the commission's finding that the pro- posed tower did not meet the public health and safety condition for a special use permit, affirmed the commission's decision. Alltel appealed. Decision: i\.ffumed. Alltel argued that the commission had abused its discretion by not granting the special use permit because the ordinance govern- ing communications towers clearly authorized granting setback vari- ances. Because this case relied on the interpretation of a zoning or- . dinance, tJ.'Ie. court had to look at the lfuJ.guage contained therein to "ascertain and effectuate the intention of the legislative body" that created the ordinance. The ordinance in question required that wireless communication towers located in nonresidential zoning districts meet required set- backs "unless deviation in height limits is requested." Alltel argued that because of that language, the ordinance plainly allowed de- viations from setback requirements for towers, but the court found that the provision did not require the commission to automatically grant a deviation upon request. Such an interpretation would make the setback requirement superfluous. Alltel argued that the commission's interpretation of the ordinance made it impossible for developers to ever obtain a deviation, but the court disagreed. The commission noted in its denial of the permit that Alltel's requested deviations were the largest ever requested for a 11 45