Board of Adjustment reverses communications tower CUP

The Homer City Council, acting as the Board of Adjustment, reversed a conditional use permit for Kodiak Microwave System to build a 160-foot microwave tower on Easy Street near Skyline Drive. Several residents in the area, Joe Carter Jr., Kevin Dee, and Kevin and Kathleen Fay, had filed appeals of the permit. The Homer Advisory Planning Commission granted the permit at its Dec. 4, 2013, meeting. The Board of Adjustment heard the appeal in April and released its findings on May 6.

While the decision reverses the permit, the board also remanded the application to the planning commission for it to consider several issues:

• Whether the tower results in an increase in the Easy Street lot’s impervious coverage;

• Whether the commission interprets city code to permit a de minimus, or lacking significant impact, increase in impervious coverage, and whether the project only causes a de minimus increase in impervious coverage;

• Whether the area of an elevated platform on a piling foundation is treated as part of a lot’s impervious coverage; and

• Whether the tower’s location complies with setback requirements and will minimize visual impacts.

Dee, executive director of Ageya Wilderness School in the area above the Easy Street site, praised the Board of Adjustment’s decision.

“We’re pleased that it’s remanded to the Planning Commission, which will allow a lot more information to be presented to them and to honor the Bridge Creek watershed restrictions,” Dee said.

Kodiak Microwave System proposed to build the microwave relay tower on 5.31 acres of land on an Easy Street lot owned by the Clapp family. The tower would provide broadband Internet service to schools in Nanwalek and Port Graham and allow service to East End Road communities, Halibut Cove and Nikolaevsk. A Kodiak Microwave System engineer told the planning commission the Easy Street lot was the best site it had found for the tower in terms of being able to reach all those communities. 

In his appeal, Dee had raised the issue of impervious coverage, questioning if the Planning Department and the planning commission had applied rules for impervious coverage equally. In city code, impervious coverage is defined as an area of ground that because of materials or structures covering it does not absorb rain or water.

“All parking areas, driveways, roads, sidewalks and walkways, whether paved or not, and any areas covered by buildings or structures, concrete, asphalt, brick, stone, wood, ceramic tile or metal shall be considered to be or have impervious coverage,” the code reads.

The Bridge Creek Watershed zoning district restricts 2.5-acre or larger lots from having a maximum total impervious coverage of 4.2 percent. Planning staff reported that a 2003 aerial image showed the Easy Street lot had 30 percent impervious coverage, including equipment storage and driveways. Staff said that coverage would qualify as a nonconforming use, though the lot owner had not applied to the city for recognition of nonconforming use.

“The CUP application did not clearly show what effect, if any, the proposed use would have on the impervious coverage area on the property,” the board wrote in its decision.

Dee said at the appeal hearing that when he wanted to build yurt platforms and decks on pilings at Ageya, also in the Bridge Creek Watershed, the planning department said that would count as part of his impervious coverage calculation. For the tower, though, planning staff didn’t count a raised platform with a communications building as affecting the impervious coverage of the lot. Dee questioned if planning staff had treated the tower more favorably than Ageya’s yurts. Ageya also has a 100-foot wind energy tower on its lot.

“It would be nice if the planning office would apply standards evenly and fairly across the board,” Dee said. “They need better resources to evaluate. They’re working off 2003 maps, for goodness sake. They deserve to have the latest tools and resources available to evaluate applications.”

The planning commission did not make any findings of the proposed tower on the impervious coverage area, the board of adjustment found. It’s unclear if the commission determined the tower would have no effect, or if the effect would be de minimis, the legal term for having an effect so minor as to merit disregard, the Board of Adjustment also ruled.

The site plan also didn’t show the precise location and dimensions of the tower, the board found, and thus it could not evaluate the planning commission’s findings on the visual impact. 

At the appeal hearing, Dee tried but failed to introduce into evidence a drawing showing the view of the tower from his lot, disputing Kodiak Microwave System’s assertion that the tower would not be visible from the ground at Ageya. The Board of Adjustment ruled it could only consider evidence presented at the CUP hearing and not after the fact.

Dee said the city needs to come up with better regulations for communications towers. At its April 28 meeting, the city council introduced an ordinance that would treat communications towers the same as wind energy systems in terms of lot setbacks and fall zones. The council sent that ordinance to the planning commission for its review.

Messages were left for comment with Christopher Slottee, the Anchorage lawyer who represented Kodiak Microwave System at the appeal hearing, and Carl Gatter with Old Harbor Native Corporation, the parent company of Kodiak Microwave System, but neither person had replied by press time. 

The Planning Department also has not heard from Kodiak Microwave System as to what it wants to do next.

Michael Armstrong can be reached at