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Fehrenbacher v. City of Durham

Court of Appeals of North Carolina

February 3, 2015

DOLLY FEHRENBACHER, MELVIN FEHRENBACHER, AARON C. CROOM, DOROTHY CROOM, STUART PIMM, JULIA PIMM, LARRY KENSIL and SUSAN KENSIL, and GOOD NEIGHBORS OF 751, an Unincorporated Association, Petitioners,
v.
CITY OF DURHAM, a North Carolina Municipality, and DURHAM COUNTY, a North Carolina County, PHILIP POST & ASSOCIATES, INC., GREEK ORTHODOX COMMUNITY OF DURHAM, NORTH CAROLINA, INCORPORATED, and SPRINTCOM, INC., Respondents

Heard in the Court of Appeals November 6, 2014

Page 187

The Brough Law Firm, by Robert E. Hornik, Jr., for Petitioners.

Styers & Kemerait, PLLC, by Karen M. Kemerait, for Respondents Philip Post & Associates, Inc.; Greek Orthodox Community of Durham, North Carolina, Inc.; and SprintCom, Inc.

Office of the City Attorney, by Senior Assistant City Attorney Donald T. O'Toole, for Respondent City of Durham.

Durham County Attorney Bryan Wardell for Respondent Durham County.

STEPHENS, Judge. Judges STEELMAN and DAVIS concur.

OPINION

Page 188

Appeal by Petitioners from order entered 20 March 2014 by Judge Howard E. Manning, Jr., in Durham County Superior Court, No. 13 CVS 3680.

STEPHENS, Judge.

This is a case about a giant fake pine tree and what it means to conceal the aesthetic externalities of modernizing our State's telecommunications grid. The Petitioners are a group of homeowners who object to the Durham City-County Board of Adjustment's decision to approve construction of a 120-foot-tall cell tower on the property of St. Barbara Greek Orthodox Church, literally across

Page 189

Highway 751 from their backyards. The Respondents include the City of Durham and Durham County, which approved the plans; the Greek Orthodox Community of Durham, which owns the land where the tower will be built; telecommunications conglomerate SprintCom, which will build, own, and operate the tower; and Philip Post & Associates, Inc., which filed the initial application to build the tower on behalf of SprintCom. Petitioners contend that the trial court, which granted certiorari to hear their appeal pursuant to N.C. Gen. Stat. § § 160A-393 and 153A-349, erred as a matter of law in affirming the Board of Adjustment's determination that SprintCom's proposed cell tower, which is designed as a " monopine" in order to blend in with a nearby grove of trees, qualifies as a concealed wireless communications facility as defined by Section 16.3 of Durham's Unified Development Ordinance. Petitioners also argue that the trial court erred by requesting and accepting photographic simulations from SprintCom that were not part of the record before the Board of Adjustment, and that the record provided in response to the trial court's grant of certiorari was inadequate. After careful review, we hold that the trial court did not err in affirming the Board of Adjustment.

I. Facts and Procedural History

On 5 January 2012, Respondent City of Durham received an application from Philip Post & Associates, Inc., acting on behalf of SprintCom, seeking approval pursuant to Durham's Unified Development Ordinance (" UDO" ) to construct a 120-foot-tall cell tower on a leased portion of a five-acre lot owned by the Greek Orthodox Community of Durham. The property, which is home to the St. Barbara Greek Orthodox Church of Durham, is located within the City of Durham's corporate limits at 8306 Highway 751, in an area zoned Rural/Residential.

The plans for the proposed tower utilize a monopine design, which is intended to give the tower the appearance of a tall pine tree, rather than a cell tower, so that it blends in with a grove of actual pine trees already standing on the Church property and qualifies as a concealed wireless communications facility (" WCF" ) under Durham's UDO. Section 16.3 of the UDO defines a concealed WCF as:

A [WCF], ancillary structure, or WCF equipment compound that is not readily identifiable as such, and is designed to be aesthetically compatible with existing and proposed uses on a site. A concealed facility may have a secondary function including, but not limited to the following: church steeple, windmill, bell tower, clock tower, cupola, light standard, flagpole with or without a flag, or tree. A non-concealed [WCF] is one that is readily identifiable such as a monopole or lattice tower.

Durham Unified Dev. Ordinance art. 16, § 3 (2006). Section 5.3.3N of the UDO regulates the construction and placement of WCFs and provides that a proposed cell tower that meets the definition of a concealed WCF provided in section 16.3 is subject to an administrative site plan approval process, whereas a tower that does not meet the definition of a concealed WCF can only be approved after obtaining a minor special use permit, which requires a quasi-judicial evidentiary hearing. Id. at art. 5, § 3.3N.

On 6 July 2012, the Durham City-County Development Review Board (" DRB" ) reviewed SprintCom's application and approved it by a vote of eight to one. Petitioners appealed DRB's decision to the Durham City-County Board of Adjustment. The Board of Adjustment heard Petitioners' appeal on 22 October 2012 and remanded the matter back to DRB for further consideration in light of defects and deficiencies in Respondents' application.

On 13 November 2012, SprintCom requested an official interpretation from Durham City-County Planning Director Steven L. Medlin regarding whether or not its proposed monopine tower meets the definition of a concealed WCF provided by the UDO. On 10 January 2013,[1] Planning Director Medlin

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concluded that SprintCom's proposed monopine tower does, in fact, satisfy UDO section 16.3's definition of a concealed WCF based on the following facts:

1) The American Planning Association (APA) is a primary source of defining " best practice" in the field of urban and regional planning. An August, 2011, edition of " Zoning Practice" . . . regarding telecommunications issues states that " . . . in rural and suburban areas, towers are effectively concealed as trees and are nearly indistinguishable from the real thing (apart from being taller than nearby trees)." Based on this standard the monopine tower design clearly mee[t]s the ...

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