AT&T tower permit expires; foes want restart

DANVILLE — It's almost a year since the city granted AT&T Wireless a variance to build a new cellular tower on a controversial site near a hospital helicopter landing zone, and now that AT&T's building permit for the tower expired May 1, opponents of the tower say variances should not be valid indefinitely.

David Wesner, corporation counsel for the city, said opponents of the tower's placement are asserting that the process through which AT&T obtained a variance and a building permit from the city should start over, because the permit expired. But, Wesner said, that's not what the city's ordinances require.

Alderman Bill Black, and some local residents, have been opposed to the placement of the proposed tower, arguing that it presents a safety hazard to the medical helicopters flying in and out of Presence United Samaritans Medical Center on Logan Avenue in Danville.

The controversy arose in July just after the city's zoning board of appeals granted AT&T a variance to build a 199-foot tower when the city's regulations allow for only 150 feet. There are several other existing towers over 150 feet in the city that received a variance from the city's regulations, but Black and local residents objected to the variance process that does not allow for any review of or appeal of the zoning board of appeals decisions. The debate led the city council to change the makeup of the zoning board of appeals and the process, which now allows an appeal process before the city council.

And after a thorough review of the safety issue at the proposed tower site — that involved the pilots who fly in and out of the hospital helipad — it was determined that the tower would not be a hazard as long as it was lit, which AT&T was not planning to do originally. The city then issued AT&T a building permit in October, and AT&T, due to the additional lighting, had to seek new approvals from the Federal Aviation Administration, which it received in November.

But construction of the tower has not moved forward since then, and the building permit expired May 1.

Chris Milliken, the city's planning and zoning manager, said AT&T has filled out an application for a new building permit. According to the city's ordinances, applying for a new permit does not mean the company must reapply for a variance. The variance granted last year still stands. Milliken said he has been in contact with AT&T officials who explained that due to the delay in getting the city's building permit last year, the construction of the tower had to be pushed into the company's next budget year. Milliken said AT&T officials told him that the company is ready to start construction on the tower next month and will finish it in August.

But Black and local residents have asked that the city council discuss the issue again, specifically whether there should be time limits on variances.

They compare it with a situation in 2007 when Aqua Illinois decided to build a water tower west of the city 18 years after the city had originally issued a special use permit. A water tower was not an allowed use under the zoning of the mostly rural property at that time.

When Aqua finally moved forward to build the tower, more houses were in that location, and residents objected. Aqua eventually built the tower, but the city council ended up discussing and approving time limits for special use permits in three specific situations. A special use permit expires:

— If a change in the permit's original use occurs.

— If the special use is abandoned or discontinued for 12 consecutive months.

— If the special use is not completed within 18 months of final approval by the city council.

But Wesner said the AT&T tower is not a zoning issue and does not involve a special use permit, because the property where the tower is to be built is properly zoned for a cellular tower.

He said comparing a variance issue to a special use in regard to zoning is not the same, and Wesner detailed his legal opinion on the issue in a memo recently distributed to aldermen, who were prepared to discuss the issue at the end of the city council meeting Tuesday. But the meeting ran so long that Black requested it be moved to the next council meeting in June.

In the memo, Wesner states that "variances do not relate to the zoning classification of the property or the nature of the use. Variances are requests to alter the regulations governing the size, location, or overall area of a particular building or item. Since they do not relate to potential incompatible uses of a particular property, no time limitation has been placed on the exercise of rights pursuant to the issuance of a variance, nor does the ordinance contain any provisions regarding the expiration of a variance."

Wesner said when aldermen have the discussion, they need to flesh out what time limitations on variance requests could mean for all types of variance requests, not just the one specific to the AT&T cell tower. The city gets variance requests for a variety of things, such as residents' garages and fences. Wesner said sometimes there can be unintended consequences when changes are made.

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