07-25-1994 Council Packet - Laserfiche WebLink

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»Ccumn i Eighth Strcft XJS Minntsota 55402*2205 it 612*371.3211 371.3207 IH Oemvca Unoowst . Vcnnum a Chmstchscn 600 17th STHBfT. Sun 2125 Dcwvw. CotoiUDo 80202*5401 Telephowc 303*573.5900 t 1 RECEn/pn JUN 2 2 1994 CITY CF CROMC Tono Orchard Road South, ski property on the north and lacMiJIan land extending above is now 85 feet tall, but that has n amateur radio tower is at the Federal Communications se control of the height issue, d since the FCC action, nd the Pentel vs. Mendota it the courts have adopted a /, its residents and the land use 5 of the property owner who f the FCC. As you can see norm. ocal community regulates ^ The answer in Orono is that ng structures (i.e. 30 feet in j towers, but in addition, in 1C provision which applies to explain. UNDQUIST & VENNUM June 20, 1994 Page 2 Orono Zoning Code Section 10.20 supplies the specific rules for uses in Zone R-IA, One Family Residential District. Section 10.20, subdivision 3(K) provides that, on a conditional use basis, a landowner in Zone R-IA may have one radio tower not exceeding 65 feet in height. There is a further specification concerning antennas in Section 10.20, subdivision 4(H), but that is not applicable, because that applies to an antenna attached to the principal or an accessory structure. The rule of statutory construction is that "the specific controls the general". In this case, the Truchinski radio tower falls squarely within Section 10.20, subdivision 3(K) and, as such, the radio tower may not exceed 65 feet in height. Under no circumstances may one look to Ordinance Section 10.75, because it is a general section. In fact, when one reviews Ordinance Section 10.75, one can readily see that it is a general section which talks about many kinds of structures which are more related to commercial users, institutional users like schools, a municipality itself, the police department, the fire department and the like. It is evident that the generous height limitation under Section 10.75 is intended to accommodate pressing public needs, such as water towers, fire towers, antenna on fire department and/or police department buildings and the like. Under no circumstances does Section 10.75 come into play for an amateur radio operator in Zone R-IA, because such person and his land use is regulated under the speciHc provisions of Section 10.20, subdivision 3(K). When one compares the cases with the Orono ordinance, one must then determine, before going to a court of law, whether or not Orono’s regulatory scheme is consistent with what has been found reasonable by numerous courts in the past concerning the height of amateur radio towers. In this case, one can see that Orono’s ordinance limit of 65 feet pursuant to Section 10.20, subdivision 3(K) is squarely within many of the cases concerning amateur radio towers. Consequently, the City of Orono can be secure in knowing that if it permits Mr. Truchinski to have a tower that is 65 feet tall, that it is almost certain that a court will sustain that tower height given all the other cases on similar tower heights. Having determined that a 65 foot height is generous, appropriate and permitted under the Orono ordinances and in conformance with law, there remains the location of the tower. As you know, the existing radio tower sits close to the MacMillan lot line. The tower base is now at an elevation of approximately 970 feet above sea level. As stated above, the reason the tower is such a problem to the MacMillans is that it is clearly visible from their property, because of the tower’s proximity to their lot, and because the MacMillan land at 1,000 feet above sea level is higher land than most of the Truchinski land. Mr. MacMillan is aware that Mr. Truchinski has offered to move the tower from its existing location to a location in the northwesterly part of his property but at a place where the tower base elevation would be at approximately 986 feet above sea