Zoning Board of Appeals Hearing on Telecommunications Tower Appeal - May 25, 2021
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Zoning Board of Appeals Meeting Summary – May 25, 2021
The City of Frederick Zoning Board of Appeals met virtually on May 25, 2021, at 7:00 PM to consider an administrative appeal (ZBA21-307AA) regarding the denial of building permits for a telecommunications tower at 300A East 4th Street. The board also approved previous meeting minutes and elected officers. No public comments were received.
Consent Calendar
- Approval of Minutes: The board unanimously approved the April 27, 2021 meeting minutes as written, with Chair Racheff voting in favor (3-0-1 abstention from member West, who was not in attendance).
Discussion Items
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Administrative Appeal ZBA21-307AA: This case involved an appeal by Winpigler RCS LLC (successor to C.E. Winpigler) of the zoning administrator's denial of two building permits: one for retroactive approval of a replaced telecommunications tower and foundation (permit 12-297) and another for replacing guy wire support poles (permit 20-1593). The appellant argued that the tower was an existing eligible facility under the Middle Class Tax Relief and Job Creation Act of 2012 and that it qualified as a legal non-conforming use under the Land Management Code. The city, represented by Assistant City Attorney Stephen Davis, argued that the 2010-2011 replacement was a new tower that required a conditional use permit, which was never obtained, and that the federal act did not apply because the tower was not lawfully constructed.
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Key Testimony: Appellant's witness Sean Winpigler testified that the tower has been in the same location since 1968 and that no zoning violations were issued during his 45-year tenure. The appellant also submitted affidavits from former mayors Ron Young and Jim Grimes stating no violations were known. The city presented evidence that the tower was relocated and replaced in 2010-2011 for WETA FM, changing its use from accessory to a third-party telecommunications facility.
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Board Deliberation: All five board members — Chair Racheff, Vice Chair Aronow, Bob Sisson, Dr. Yin, and Steve West — expressed agreement that the 2010-2011 replacement constituted a new tower requiring a conditional use permit. They noted safety concerns, the need for proper review of height (the new tower may exceed the 150-foot limit), and that the federal act does not preempt local authority for new structures. Board members acknowledged the long delay since the 2012 stay agreement but concluded that the original denial should be affirmed.
Key Outcomes
- Decision on Appeal: The board voted to affirm the denial of the building permits, finding that the tower replacement was a new installation requiring a conditional use permit from the Zoning Board of Appeals. The board will draft a formal written opinion for adoption at the next meeting (June 2021).
- Election of Officers: The board elected Jim Racheff as Chair (4-1) and Lawrence Aronow as Vice Chair (4-1, with Racheff abstaining).
- Next Steps: The city attorney will prepare a written decision reflecting the board's findings, to be voted on at the June meeting. The immediate safety concern about the guy wire poles was noted, but the board emphasized that the tower's status must be resolved first.
Meeting Transcript
All right. Good evening, everybody. Welcome to the May 25th, 2021 meeting of the City of Frederick Zoning Board of Appeals. Before we get started on tonight's business, I always like to start by giving folks that might not be familiar with the ZBA a little overview of our responsibilities and the procedures that we'll be following tonight. So it is the responsibility of the zoning board of appeals to authorize on appeal in specific cases a variance from the terms of the city zoning regulations, to hear and decide special exceptions to the terms of the zoning regulations, and to hear and decide appeals from aggrieved parties where it alleged that there has been an error in any order, requirement, decision, or determination made by an administrative officer in the enforcement of the land use article of the annotated code of Maryland or any law adopted under that article, which includes the City of Fredericks Land Management Code. We conduct our responsibilities in accordance with the city's land management code as well as Maryland state law. Members of the zoning board of appeals, we are all volunteers and we are all residents of the city. Members are appointed by the mayor, and those appointments are confirmed by the Board of Aldermen. The board is comprised of five voting members, uh, and all five members are present with us here this evening. Um the board is also uh supported in our activities uh by uh city staff. And so if somebody um is calling in to give public comment tonight, uh something along those lines, uh our city staff uh led by uh Ms. Jessica Murphy will be coordinating those efforts on our behalf. And uh in addition tonight, Mr. Scott Waxter, uh assistant uh attorney, assistant city attorney here with the City of Frederick will be serving as the zoning board of appeals uh legal counsel and legal advice. So for tonight's procedures, um tonight's meeting will be conducted virtually due to the ongoing health emergency. Uh and in accordance with the governor's orders and the county executives' orders and the mayor's orders. Members of the ZBA, staff, applicants will all be attending the meeting remotely. Um the complete proceedings will be televised tonight on Channel 99 and also available for streaming on the city's website. Public comment will be accepted tonight as well. Those wishing to make public comment will be asked to call phone number 301601213 prior to the item on the agenda that they would like to give uh comment on. Your call will be answered in the order that it is received. Uh, and then you will be transferred to the live feed of the meeting uh accordingly and in that same order. Um anybody who is uh planning on making public comment tonight will be asked to state their name and their address and uh will be sworn in prior to giving any testimony uh before the board. I would say for applicants, please join the meeting uh um during the item immediately before your item. Uh that being said, uh, we have one item of new business, and I understand the applicant is already joined as well. So hopefully that will not be a concern for us tonight. Um we do get to that item on the agenda. I will ask uh the applicant to introduce uh each member of uh their team who happen to might be presenting. Um much uh like we will do with public comment. We will also swear in uh anybody else making uh testimony before the board. We're all gonna do the very best that we can under these circumstances. Um we are most assuredly um going to make uh some mistakes this evening. Um we do appreciate everyone's patient and bearing through us as we work through any difficulties that may happen uh to arise on our agenda tonight is an administrative appeal, which actually um also follows a um slightly different process uh than our variances in uh special exceptions. We have yet to do an administrative appeal uh here in the virtual uh online format. Uh so um that uh might also uh introduce a couple extra hiccups from myself. Uh like I said, we appreciate everybody's uh patience as we navigate uh through uh a virtual meeting. Um we have a couple items on our agenda before we get to tonight's cases. Um and so um we'll go ahead and handle those housekeeping matters uh in uh order for anybody following along or with the staff report or tonight's agenda. Uh that is item number one, our call to order and announcements. Item number two is normally in our in-person uh uh situation, general public comments, uh, which we have not been doing uh during the pandemic. Um those are public comments not related to tonight's cases or any item on the agenda tonight. Um so just uh general comments that folks uh might happen to share. Um that brings them to item number three, um, approval of the minutes. Um members of the board, you have before you the April 27th, 2021 meeting minutes. I will entertain a motion. Mr. Chess, this is Bob Sisson. I move that we accept the April 27th minutes as written. We have a motion for approval from Mr. Sesson.
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