MINUTES

WARRICK COUNTY AREA BOARD OF ZONING APPEALS

Regular meeting held in the Commissioners Meeting Room

Third Floor, Court House

Boonville, Indiana

July28, 2004, - 6:00 P.M.

MEMBERS PRESENT: Larry Willis, Chairman, Don Mottley, Vice-Chairman; Duane Erwin, William McCune, Richard Medcalf, John Peninger, and Dennis Taylor.

Also present were: Sherri Phillips, Executive Director and Secretary; Leslie Shively, Attorney; Sheila Lacer, staff.

MEMBERS ABSENT: None

MINUTES:

A motion was made by Duane Erwin to approve the minutes of the last regular meeting of the Area Board of Zoning Appeals held June 23, 2004, as circulated. The motion was seconded by Don Mottley and unanimously carried.

The Chairman explained the Rules of Procedure to the audience.

The Chairman stated they are going to move from their agenda and do Special Exceptions first tonight.

SPECIAL EXCEPTIONS

BZA-SE-04-27 – Applicant: Bell South Mobility d/b/a Cingular Wireless c/o Pike Legal Group PLLC by David Pike, Attorney Owners: Revocable Trust of Kenneth Ubelhor by Kenneth Ubelhor, Trustee.

Premises – Property located 1300’ E of Bell Rd (W 850) approximately 900’ N of the intersection formed by Bell Rd and SR 66. Ohio Twp. Proposed Lot 13 in High Pointe Centre North Sec 2. 8190 High Pointe Dr.

Nature of Case – Applicant request a Special Exception from the district requirements as set forth in the Comprehensive Zoning Ordinance in effect for Warrick County, Indiana, to allow the construction of a 150’ monopole with a 10’ lightning arrestor and 3 equipment shelters in a “C-4” General Commercial Zoning District. Advertised in the Boonville Standard on July 15, 2004. – Request to continue until the September 22, 2004, meeting.

Present were David Pike, Attorney; and Danny Ubelhor, trustee.

The Chairman called for a staff report.

Ms. Phillips stated the applicant has submitted a letter asking to continue this until the September meeting. She stated she did notify the adjacent property owners home owners association that this would be continued until the September meeting.

The Chairman asked if the applicant had anything further to add to the staff report.

Attorney Pike stated there are a number of people who have expressed concerns about this proposal. He stated although what they do is not always popular, they like to address those concerns when possible, prior to a public hearing or meeting. He stated so they have requested this continuance to give them an opportunity to enter into some discussion with adjoining land owners. He stated there is no guarantee that they will be able to deal with their concerns, but they certainly want to try.

Ms. Phillips asked Attorney Shively if the applicant would need to re-notify all the adjacent property owners that the application is going to be heard September 22, 2004.

Attorney Shively stated since they are going to skip a meeting, he thinks to insure everyone has an opportunity to be heard, and there be no technical problems with the notification, they should probably send notice again.

Attorney Pike stated he has no problem with that and he would like to thank the Executive Director for her extraordinary efforts assisting them on this, there are very few Area Plan Commissions that would take it upon themselves to contact adjacent land owners. He stated for that they are grateful.

The Chairman called for a motion.

Don Mottley made a motion to continue BZA-SE-04-27 until September 22, 2004.

The motion was seconded by Duane Erwin and unanimously carried.

The Chairman stated the reason they moved them to the head of the agenda this evening was because if there was anybody here waiting to hear that application, they try to accommodate the people so they would not have to stay if that was the only thing on the agenda they were interested in.

VARIANCES:

BZA-V-04-21 – Applicant: Amanda Cundiff Owners: Amanda & Kevin Cundiff

Premises – Property located on the S side of Lancaster Dr approximately 0’ E of the intersection formed by Lancaster Dr and York Ridge Dr. Ohio Twp. Lot 18 York Ridge Sub.8423 Lancaster Dr.

Nature of Case – Applicant requests a Variance from the requirements as set forth in the Comprehensive Zoning Ordinance in effect for Warrick County, Indiana, to allow the location of an existing unattached storage building not meeting the minimum distance of 10’ from the principle dwelling in an “R-1A” Single Family Dwelling zoning District. Advertised in the Boonville Standard on May 13, 2004. Continued from the May 26, 2004, and June 23, 2004, meeting.

There being no one present, the Chairman called for a staff report.

Ms. Phillips stated this is the application where the applicant mailed the notice without return receipt service, then the next time they sent them certified with return receipt; however it was only 7 days before the meeting. She stated the Board ruled that she could hold a hearing officer for the Board for the applicant after they got the signed waiver of non-objection from all the adjacent property owner. She stated Mrs. Cundiff was supposed to come into the office the next day and she never did.

Attorney Shively stated the options of the Board, and; they could either continue it to the August agenda or vote on the merit of the request as it stands now.

Ms. Phillips stated that the Cundiff’s received an Improvement Location Permit for an unattached storage building at their house and then they came in to add on to their house. She stated at that time it was found that the Improvement Location Permit for the unattached storage building was incorrect. She stated when the builder got the permit for the unattached storage building it met yard requirements, however they did not build it there, so they are in need of a variance because they are in violation of the Comprehensive Zoning Ordinance. She stated she could write them a letter and tell them to come before the Board in August.

Mr. Willis stated if they do not place it back on the agenda, then they will still be in violation of the zoning ordinance, so he thinks they need to come before us either to get permission or to find out why they don’t need permission.

Mr. Mottley asked if anyone had been out there, maybe they took it down or decided to move it.

Ms. Phillips stated no she had not been there.

Mr. McCune stated he thinks they should send him a letter telling them to be here one more time.

Mr. Willis stated or if they have removed the building have them notify the staff so the building inspector can verify that it is gone.

William McCune made a motion to send a letter to the Cundiff’s requesting them to be here at the August 25, 2004, meeting and if they have removed the building they should notify the staff so they can send the zoning inspector out to verify that it has been removed.

The motion was seconded by Don Mottley and unanimously carried.

BZA-V-04-26 – Applicants & Owners: Robert & Sherri Cook

Premises – Property located on the S side of Waterford Place approximately 260’ E of the intersection formed by Bridgestone Blvd and Waterford Place, Ohio Twp. Lot 66 Thornbrook Estates Sec. C. 10339 Waterford Place

Nature of Case – Applicants request a Variance from the requirements as set forth in the Comprehensive Zoning Ordinance in effect for Warrick County, Indiana, to allow the location of an in ground pool in a recorded 25’ building setback line in an “R-1A” Single Family Dwelling zoning district. Advertised in the Boonville Standard on July 15, 2004.

Present was Robert Cook.

The Chairman called for a staff report.

Ms. Phillips stated all return receipts from certified mail to adjacent property owners of notice of this meeting have been submitted. She stated the Subdivision Control Ordinance requires the subdivision dedication certificate to state that no structures are to be allowed within the building set back line. She stated the proposed pool encroaches in the building set back line by 13’ and pools are not required to meet any yard requirements other than they are not allowed to be located in any easements which is why they must obtain an Improvement Location Permit. She stated this proposed pool abuts the 12’ PUE but does not encroach into it. She stated normally there is not a 25’ building setback line on the back of a lot and if the building setback line had not been placed on the lot, a permit could have been issued without them filing for a Variance. She stated as they can tell by the aerial photo the property fronts on Waterford Place and on the back is Lockwood Lane, so when the developer platted the subdivision, they put a 25’ building setback line along Lockwood Lane. She stated that stops them from being able to put anything within that 25’. She stated the Board of Zoning Appeals granted a similar Variance on Lot 60 in Thornbrook “C” on March 25, 1998.

The Chairman asked Mr. Cook if he had anything further to add to the staff report.

Mr. Cook stated no.

The Chairman called for questions by the Board.

Mr. Mottley stated the plot plan shows a fence already existing in the setback. He stated there are already bushes and things in the setback already. He stated it is like it is going to be hidden.

Ms. Phillips asked Mr. Cook if the pool was going to be 12’ from the back property line.

Mr. Cook stated yes.

Ms. Phillips stated Lockwood Lane is a small road, lane, not heavily traveled.

Mr. Mottley asked if there were any utilities in the setback line.

Ms. Phillips stated all the utilities should be located within the 12’ public utility easement.

Mr. Mottley asked if it was the developer who increased that and it is not something the Plan Commission has in their ordinances.

Ms. Phillips stated it is in the ordinance that on lots all structures have to be 25’ back from the road right of way, but we do not require in ground pools to meet yard requirements. She stated the subdivision dedication says no structure are to be allowed with in the building setback line and the only reason it is there is because of the road behind them.

There being no other questions by the Board and no remonstrators, the Chairman called for a motion.

Don Mottley made a motion to approve BZA-V-04-26, subject to the following conditions:

1. Improvement Location Permit must be obtained.

2. Subject to any required Building Permit.

3. Subject to the property being in compliance at all times with the applicable zoning ordinance of Warrick County.

4. Subject to all public utility easements and facilities in place.

The motion was seconded by John Peninger and unanimously carried.

SPECIAL EXCEPTIONS CONT:

BZA-SE-04-28 – Applicant & Owner: Warrick County School Corporation by Brad Schneider, Superintendent.

Premises – Property located on the E side of SR 261 approximately 170’ N of the intersection formed by Parker Dr and SR 261. Ohio Twp. (Complete legal on file.) 2800 SR 261.

Nature of Case – Applicant request a Special Exception from the district requirements as set forth in the Comprehensive Zoning Ordinance in effect for Warrick County, Indiana, to allow the construction of a 180’ free-standing tower to be placed immediately adjacent to the North side of Castle Jr. High School and be utilized for educational data transfer in an “A” Agriculture and “R-1A” Single Family Dwelling Zoning Districts. Advertised in the Boonville Standard on July 15, 2004.

Present was Mark Neff, Attorney.

The Chairman called for a staff report.

Ms. Phillips stated all return receipts from certified mail of notice of this meeting to the adjacent property owners have been submitted, except from Jeffrey O’Dell and it was mailed to the correct address. She stated they will need to submit the return receipts when they get them. She stated they have applied for a special exception to allow a 180’ free standing tower to be placed immediately adjacent to the north side of the existing Castle Jr. High School. She stated the application states the tower will be utilized for educational data transfer. She stated the property to the North is zoned “R-1A”, “C-3”, Agriculture, and CON, with there being residences and an auto shop in the commercial, to the South the property is zoned “C-3”which is Paradise Park Subdivision and Agriculture with residences, to the East is zoned “R-1A” which is Oakgrove Subdivision, and to the West there is some “R-1A” with residences as well as some “M-1” Light Industrial. She then stated there is no flood plain on the property. She stated the School Corporation is normally exempt from any required Improvement Location Permits for any additions; however, since this is a proposed tower they needed to file this Special Exception. She stated the Board of Zoning Appeals a few years ago made a resolution for certain conditions to be placed on telecommunication towers and one of the conditions is that if the tower is no longer in use then it is to be removed within 6 months from that time. She stated the Board can required fence if they choose to do so.

The Chairman asked Attorney Neff if he had anything further to add to the staff report.

Attorney Neff stated the purpose of this is to provide quicker internet service between school buildings. He stated right now the School Corporation has to rent in each separate location telephone internet access. He stated so the idea is to eliminate that, and to speed it up 40 times faster that what it is now. He stated it will eliminate slow internet service, service that goes down or is nonexistence, and it is to assist the school in transporting data. He stated it is not supposed to be a cell tower. He stated he sent a copy of the Boonville permit and the plan is to put one in Boonville, Castle Junior, and at some point put one at Tecumseh. He stated he is not sure what will happen with the south part of the county or up by Elberfeld. He stated this is rather new technology and the intent is to save money and to expedite the transmission of data between buildings.

The Chairman called for questions by the Board.

Mr. Peninger asked if this would be limited in transferring data between buildings or would it also allow the entire web.

Attorney Neff stated he could not tell them that for sure. He stated he believes it is internet access and would go other places than the administration building, but it is intended to be primarily used for sending data between buildings.

Mr. Mottley asked if they have any plans that if a cell phone company would contact them and would they have to come back before this Board.

Attorney Neff stated he had not heard of any plans and would be surprised that they would be inclined to share towers.

Mr. Mottley stated it would be good income for the School Corporation.

Attorney Neff stated that may interfere with them getting their data and it is not the intent.

Mr. Willis asked if it was going to be exclusive use for the School Corporation.

Attorney Neff stated yes.

Ms. Phillips asked if there was going to be any fencing or anti-climbing devices around the tower.

Attorney Neff stated the only thing they have talked about because it is adjacent to the existing driveway that runs along the side of the building is to putting up something that would keep school buses or traffic from ramming into it. He stated as far as keeping the kids off of it, they don’t keep them off the roof so why worry about that. He stated they will put some type of fence up, but whether or not it keeps junior high school kids off it, he would doubt.

There being no other questions by the Board and no remonstrators, the Chairman called for a motion.

Duane Erwin made a motion to approve BZA-SE-04-28, subject to the following conditions:

1. Any FAA rules and regulations and any other regulatory agency permits must be obtained if required.

2. Subject to an anti-climbing devise and/or fencing be put up around the tower.

3. Subject to any required Building Permit.

4. Subject to the property being in compliance at all times with the applicable zoning ordinance of Warrick County.

5. Subject to all public utility easements and facilities in place.

6. Subject to applicants submitting a statement agreeing to remove the tower within 6 months after it is no longer being used.

The motion was seconded by Richard Medcalf and unanimously carried.

BZA-SE-04-29 – Applicant: Youth Incorporated of Southern Indiana, by Andrew Fuller, Executive Director Owner: Lake Group, Inc. by Stewart Phillips, Pres.

Premises – Property located on the S side of Ayrshire Rd (N 150) approximately 830’ E of the intersection formed by Ayrshire Rd and St. Johns Rd. (W 1100) Campbell Twp. Lot 2 in Meadowlark Hill Subdivision Phase I.10611 Ayrshire Rd

Nature of Case – Applicant requests a Special Exception from the district requirements as set forth in the Comprehensive Zoning Ordinance in effect for Warrick County, Indiana, to allow the construction of a 120’ self supporting radio tower and a 4’ x 8’ utility shed in an “A” Agriculture zoning district. Advertised in the Boonville Standard on July 15, 2004.

Present were Randal Spence, volunteer consulting broadcast engineer; and Jerry Aigner, owner in Lake Group.

The Chairman called for a staff report.

Ms. Phillips stated all return receipts from certified mail of notice of this meeting to the adjacent property owners have been submitted, except from Michael Schuetter & Jennifer Radke and one from Michael Family Limit Partnership/Michael Farms. She stated they were sent to the correct addresses and they have been delivered but the return receipts have not been returned yet and the applicant will need to submit either the return receipt or unopened envelope from both neighbors. She stated the existing land use is a vacant lot and the proposed use is a lease area on lot 2 to construct a 120’ self supporting radio tower and a 4’ x 8’ utility shed. She stated in the application submitted it states that the tower will be used by the Youth Incorporated of Southern Indiana and will broadcast a low FM radio station. She stated the broadcast studio will be at their Wired Coffee House at 221 Main Street in Evansville. She stated the application states the local high schools and college students will make up the core of the broadcast team. She stated the surrounding property is zoned Agriculture and the property to the North, East, and West are lots in Meadowlark Hills Subdivision, the property to the South is vacant. She stated the lease area will access off of Ayrshire Road and the lease area does have road frontage. She stated if this application is approved the applicant will need to obtain a utility driveway entrance as approved by the County Highway Engineer.

The Chairman asked if Mr. Spence had anything to add to the staff report.

Mr. Spence stated everything in there was pretty well said, he would just like to make sure that he knows that the number one question asked by the Plan Commission, is this a cell tower. He stated no and the power that will be exerted from that tower is less than that of the standard home microwave unit. He stated it will just be a 100 watt. He stated FM in fact at that height is just about 75 watts and that is all that is allowed.

Ms. Phillips stated the applicants did meet with the commercial site review committee before they filed the application. She stated they did question them on collocation and cell towers within 5 miles, but this is just for their broadcasting station.

Mr. Spence stated they would prefer an existing tower, but unfortunately due to the low power FM rules set by the FCC and Congress, they can be no more than 3.5 miles from Baugh City, which is their community license. He stated the original plot that was granted to us is not functional on Titzer Road, there is no power or electricity and would be very expensive for a non-profit group. He stated over the past year they have been looking for a location and they only have 18 months for the construction permit. He stated they are getting down to the wire. He stated they have talked to several property owners to the south and it just did not work. He stated Mr. Aigner came to their rescue and said they might have a place that would work functionally. He stated their concern also is that they want this to be a part of Warrick County as much as it would be for Vanderburgh County. He stated this will not be an Evansville Station and he is already in negotiation with Ralph Turpin with WBNL, he would also like to find the right person with Emergency Management in Boonville, to make the airwaves available in case of anemergency or weather disaster. He stated that has to be priority one in their license and they plan to promote youth events in Boonville.

The Chairman called for questions by the Board.

Mr. Willis asked if this was a self supporting tower.

Mr. Spence stated yes, and they feel it is more attractive and sturdier. He stated if the FCC should ever change their rules and they could move to a more appropriate location, they would have the ability to take it down and move it. He stated right now with the FCC rules, if they move it North, South, East, or West they will not be allow to broadcast. He stated there is just one little line between Titzer Road and this location that the FCC will allow them to broadcast from.

Mr. Willis asked what the radius was of the broadcast signal.

Mr. Spence stated if depends on the tuner; they will be covering about 70% - 75% of Warrick County and 60% - 70% of Vanderburgh County. He stated from Boehne Camp Road on the West side of Evansville to Tennyson and from Wolf Hills in Henderson to Buckskin Bottoms.

Mr. Medcalf asked what was going to be broadcast exactly.

Mr. Spence stated the program is going to be primarily geared at youth, between the ages of 15 to 30. He stated radio stations are geared primarily at adults over the age of 25 and they feel it could be a positive outlet for youth to get involved in communication. He stated his is a noncommercial FM, there will be no commercials, there will be underwriting. He stated they can advertise for non-profit organizations. He stated they feel it would be kind of a center post with a program geared to that age group and lots of positive influence. He stated they will let them tell them what reaches them and teaches them, within reason.

Mr. Mottley asked what type of fence or anti-climbing device to they plan on installing.

Mr. Spence stated they plan on putting up a fence around the perimeter. He stated the FCC requires it also. He stated at 120’ they feel they still need to have at least an 8’ fence around the property and to have it pad locked securely as well as the door on the inside of the shed. He stated under 200’ they are not required to have lights on the tower and they are not in a landing pattern. He stated there will be no lighting to upset the neighbors.

There being no further questions by the Board, the Chairman called for remonstrators.

Dave Schwindel stated he is with Studio B here in Boonville. He stated Mr. Fuller was very instrumental in getting Studio B, because Gem Industries Inc. now was a part of Youth Incorporated for 5 years. He stated he supports kids and this has been a long time dream of his. He stated this will be an asset to the community if this is allowed.

John Hardy stated he owns the property adjacent to the East side of the subject property. He stated he has a few questions that concern him about the tower. He stated he is concerned that if the tower is put 25’ off the property line, that it will decrease the value of his property and the property next to him. He stated he was hoping someone would buy that lot and help increase the value of their home. He stated he thinks it is great ides, but there are several neighbors in that area that moved out there to get away from things like that. He stated he has two horses and they like to set out back and watch them, to put a tower in that picture does not appeal to his situation. He stated he has been told by other people that electronic waves can cause certain disabilities and cancer. He stated there are laws in other states that require towers like these to be at least 300’ from homes or subdivisions. He stated that is a higher point and when storms pass over the tower will attract more lightening and could affect their horses. He stated he is just concerned about the whole subject. He stated if they are going to put it on that lot why not put it in the middle of the lot or not so close to someones property.

Mr. Medcalf asked Mr. Hardy if he would be pleased if the tower was put more in the center of the lot.

Mr. Hardy stated yes, just not so close to his horse pasture. He stated it is a 3 acre lot and this is the worst possible place for him to put a tower.

Mike Schuetter stated he never got the certified letter. He stated one of his main concerns is his property value decreasing. He stated he believes they have a good idea and a good thing for kids and probably for Boonville, but he moved out there for the view and to get away from everything. He stated everyone puts a lot of time and money into their property and he thinks it will be an eye sore. He stated he will be sitting in his living room and look outside his front door and see a tower. He does not know what kind of health problem there could be but he leaves that up to people more in that field. He stated it will decrease the value of his property.

Mr. Mottley asked Mr. Schuetter if the tower was moved to a different location on the property would he still have as many concerns.

Mr. Schuetter stated it does not pertain to him, it would still be across the street. He stated aseptically it would not make a difference to him, but he would feel the same way Mr. Hardy feels if it was next to his property.

Mr. Mottley stated he would like to address two of the concerns. He stated they had a seminar a couple of years ago and under the Federal Communication Act in 1990, it basically says that the Board cannot, because they are not professionals, take anything like that into consideration. He then asked Attorney Shively if that was right about the health issues.

Attorney Shively stated he does not know exactly what Mr. Mottley is referring to but, property value comes up all the time. He stated if the petitioner had come before us with information from a real estate evaluation expert or broker and documented the fact there would be no impact on property values and a remonstrator say in their personal option they disagree with that, that would not be enough. He stated the Board makes these decisions, if the applicant has brought forward sufficient evidence and quality so show compliance for the granting of the Special Exception it is incumbent upon this Board to grant it. He stated unless those in opinions have present evidence of similar weight and quality, but tonight it seems that everyone is shouting from the hip, so there is not much technical profession data on either side.

Mr. Peninger asked how far Mr. Schuetter how far off the road does his house sit.

Mr. Schuetter stated about 75’ to 100’.

Mr. Peninger asked how far Mr. Schuetter would set from the tower.

Mr. Schuetter stated he did not know.

Mr. McCune stated it would be about 425’.

Ms. Phillips stated on Mr. Schuetter certified letter is says on the internet that notice was left on the 16^th and no one was home. She asked if the postal service left Mr. Schuetter a notice.

Mr. Schuetter stated yes.

Ms. Phillips stated then Mr. Schuetter needs to sign for it so they can get the return receipt back.

Gerald J. Vercellotti stated he live on lot 19 across the street. He stated some of their concerns have been spoken about and it seems shocking to them to get a letter saying they want to put up an FM radio tower in a residential neighborhood. He stated according to the FCC the radius of a lower powers frequency is 3.5 miles and he knows things can vary. He stated they are calling on their map 9 to 15 miles, but if you go out 3.5 miles it only reaches Telephone Rd and it will miss their entire market. He stated apparently they have expertise in this area, but how do they know it is going to reach that far out. He stated this is an empty lot and the other concern is that a house will never be built on it with that out there. He asked will it enter fear with his wireless internet or his cable. He asked will it come through on his phones and TV’s, he has seen it before.

Mr. Mottley stated he would like to ask Mr. Aigner a question. He asked if there are any other lots or areas out there that would do the same thing for the applicant.

Mr. Aigner stated he did not think so.

Mr. Spence stated when they went to Mr. Aigner and Mr. Phillips that pencil thin line from Titzer Road to that lot; they are basically restricted to a 10^th of a mile basically. He stated if it is not in that area the FCC will not let them broadcast, so that is why that lot was chosen. He stated yes, they are within reason, if they needed to move that a little bit to the West to make sure the owner was satisfied, they can do that. He stated 75 watts on the FM bands if different than 75 watts on the CB band. He stated the CB radio is low band, in other words in amplitude modulation the wattage is everything, it is lower to the spectrum, it gets out further with less wattage, thus 75 watts, a hair dryer has more wattage being produced electrically, a telephone line and utility would be putting out more interference than that. He stated on the concern on the 3.5 mile radius that is the 60 DBU signal, which is considered the city grade signal that is a term known as the guaranteed protected city contour, which has to cover Baugh City. He stated most car radios can pick up a radio station anywhere from 35 – 45 decibels of signal based on the plot. He stated the 3.5 mile radius is their guaranteed city grade no interference signal. He stated they must accept any outside interference on a bad weather day on anything past that. He stated yes, there is only a 3.5 guaranteed, but on terrain like ours most car radios will be able to pick up that station from 10 to 15 miles, and on a good tuner probably about 7 to 10 miles. He stated he has files on two other locations with the FCC and was told it would not work because they were beyond the 10^th of a mile rule. He stated they are at a cross road where they have to be on by mid November or they loose the construction permit. He further stated there are no extensions that can be filed and they are treated differently than the full power radio stations that have 3 years to construct the station. He stated they are given 18 months to raise the money and construct the tower. He stated he would like to work with the neighbors, but they are under the wire. He stated they will make sure the yard is kept clean and nice. He stated he would be willing to work to see the site moved more toward the center of the back of the lot.

Mr. Willis asked about the interference of the Broadcast signal with appliances or telephones.

Mr. Spence stated they must meet part 15 of the FCC compliance code which deals with items such as electrical objects in your home whether it is a tuner, television, cable, wireless. He stated one of the reasons FM’s do not collocate with cell towers normally is because cell towers bleed over onto the FM. He stated they are held by the Federal Communication Commission to the standard that if they do cause any interference to any of the homes in that area, they must take steps immediately to alleviate the interference and they have to take the responsibility of putting a trap on any TV set if there is a bleed on. He stated there is a one dollar filter that goes on the back of the TV set or in the cable line or FM tuner. He stated on radiation and electro magnetic waves, they have requested a 120’ tower, they can go as low as a 100’, but they feel the higher you go, the less wattage allowed. He stated at 100’ they are allowed 100 watts or a variation there of. He stated they feel that is good and it is 25% less wattage and the FCC would not grant them a construction permit in these areas if it was going to cause interference with the population. He stated the FCC rules have gotten stiffer with in the last 10 years and if they would see anything OSHA would not like, they would say no. He stated they can assure the neighbors that this is less wattage than is being exerted from your hair dryer or microwaves. He stated they would do anything in their power to make them happy and if a time should come when the FCC rules would change, they would consider finding a more applicable location.

Mr. Willis asked if 120’ tall tower is going to attract lightening and that lightening will come to the ground, what provision have you in place to keep the lightening from spreading out into the ground.

Mr. Spence stated the FCC requires them to buy a lightening or grounding kit. He stated if that is not on the tower the first time it is struck it will not only go down the tower and into the equipment, but it will fry everything. He stated that will be very expensive to fix. He stated so they have to meet their standards in that and there will be adequate grounding and this will not be a fly by night operation, everything will be done 1^st class.

Ms. Phillips asked Attorney Shively if they moved the location would that not have to be a whole new application and new notice be sent to the adjacent property owners.

Attorney Shively stated it would require new notification, yes. He stated when you change location it brings into play different neighbors.

Mr. Spence stated right and they would want them to be involved in the process. He stated he still has to meet the FCC deadline by mid November, and that would cut them even shorter. He stated but he is willing to work with what ever the Board wants. He stated as an adjacent property owner he would have the same concerns and he would like to assure them that everything has been looked at.

Attorney Shively asked if the applicant wanted to amend the plot plan.

Mr. Spence stated he would like to leave it as it stands at this point.

There being no other remonstrators and no further questions by the Board, the Chairman called for a motion.

John Peninger made a motion to approve BZA-SE-04-29, subject to the following conditions:

1. Any FAA rules and regulations and any other regulatory agency permits must be obtained if required.

2. Subject to the lease being recorded.

3. Subject to an Improvement Location Permit being issued.

4. Subject to an anti-climbing devise and/or fencing be put up around the tower.

5. Subject to any required Building Permit.

6. Subject to the property being in compliance at all times with the applicable zoning ordinance of Warrick County.

7. Subject to all public utility easements and facilities in place.

8. Subject to a utility driveway permit being obtained.

9. Subject to applicants submitting a statement agreeing to remove the tower within 6 months after it is no longer needed.

The motion was seconded by Larry Willis, with Richard Medcalf, Don Mottley, John Peninger, and Larry Willis, voting yeah and Duane Erwin, William McCune, and Dennis Taylor, voting nay, motion carried.

OTHER BUSINESS: None

ATTORNEY BUSINESS: None

EXECUTIVE DIRECTOR BUSINESS: None

Being no other business the meeting adjourned at 7:15 P.M.

Larry Willis, Chairman

ATTEST:

The undersigned Secretary of the Warrick County Area Board of Zoning Appeals does hereby certify the above and foregoing is a full and complete record of the Minutes of said Board at their monthly meeting held July 28, 2004.

Sherri Phillips, Executive Director & Secretary