Our View: Section 18-2-1.2

Posted: September 24, 2013

Tangential issues, relatively speaking — i.e., viewsheds, public notice concerns, adequate exploration of alternative sites, “balloon test” photos — abound in the controversy surrounding the proposed construction of an emergency communications tower atop Jefferson Street. But not for Scott and Lauri Bridgeforth.

The Bridgeforths own — and reside — on one of three parcels that touch the city-owned property envisioned as the site of the tower. For them, the controversy hits close to home, more literally than figuratively. Land values and development opportunities hang in the balance. Specifically, they contend that future plans to develop their seven acres are compromised by the fact the tower’s anticipated “fall zone” lies within their parcel.

What’s more, the Bridgeforths believe construction of the tower under this circumstance violates Winchester’s Zoning Ordinance. In making this argument, they cite this paragraph of Section 18-2-1.2 of the ordinance:

“The height of any tower is no more than the minimum to accomplish required coverage and any new tower is separated from property lines in a residential district by not less than the height of the tower. In no case shall any tower exceed 75 feet in height in a LR, MR, HR, RO-1, RB-1 or HS Districts, nor 100 feet in the B-1, B-2, CM-1, PC, MC or HE-1 Districts, nor 200 feet in the M-1 or M-2 Districts.”

The Bridgeforths’ basic point: The tower’s “fall zone” must be “separated from property lines in a residential district by not less than the height of the tower.”

Winchester sees it differently. In a zoning interpretation tendered April 24, 2012, the city, as noted in the Proposed Public Safety Communications Tower Questions and Answers document released Friday, “stated that there is no maximum height or setback requirement outlined in the Zoning Ordinance for proposed towers in the Education, Institution, and Public Use (EIP) zoning district. The proposed tower site on 700 Jefferson St. is zoned EIP and as a result there is no maximum tower height or setback requirement from property lines.”

During an interview earlier Friday, City Manager Dale Iman offered the same distinction — namely that towers built on land zoned EIP are not subject to restrictions relative to other zoning designations.

To reiterate, the Bridgeforths, in reading Section 18-2-1.2, draw a different conclusion — i.e., “any new tower” must be “separated” from residential property lines “by not less than the height of the tower.”

So what we have here is a stark difference of opinion, and a potential legal impasse between city and property owner. For all the certainty they feel about their interpretation of the ordinance, the Bridgeforths nonetheless consider themselves “backed into a corner,” largely due to time constraints — that is, the city butting up against the termination of a one-year waiver granted by the Federal Communications Commission to make sufficient progress complying with a federal mandate to upgrade its communications system in accordance with new standards.

That waiver, as well as other matters of import under discussion between residents and City Hall, will be the subject of Wednesday’s final installment in this editorial series about the Jefferson Street tower.