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HomeMy WebLinkAboutResolution 25-12 Denying SUP Vertical Bridge for 130 ft wireless towerTOWN OF WESTLAKE, TEXAS RESOLUTION NO. 25-12 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, DENYING A SPECIFIC USE PERMIT SOUGHT BY VERTICAL BRIDGE DEVELOPMENT, LLC, TO CONSTRUCT, INSTALL AND OPERATE A 130-FOOT TOWER AT 2000 DOVE ROAD, WESTLAKE, TEXAS 76262 (PARCEL NO. 42447729), IN A GOVERNMENTAL USE (GU) DISTRICT TO SUPPORT ONE OR MORE NEW WIRELESS COMMUNICATION FACILITY(IES). BACKGROUND A.WHEREAS, the Town of Westlake, Texas (the “Town”) has adopted a Zoning Ordinance to regulate the location and use of structures and land in full accordance with Chapter 211 of the Local Government Code. B.WHEREAS, the Town’s Zoning Ordinance is codified in the Code of Ordinances of the Town of Westlake, Texas (the “Code”), Chapter 102. C.WHEREAS, the Code requires a specific use permit for any wireless communication facility that does not meet the regulations contained within Code Chapter 102, Article III, Division 2.1 D.WHEREAS, the purpose of the specific use permit process is to identify those uses which might be appropriate within a zoning district, but due to either their locational, functional or operational nature, could have a potentially negative impact upon surrounding properties; and to provide for a procedure whereby such uses might be permitted by further restricting or conditioning them so as to eliminate such probable negative impacts. E.WHEREAS, the Town Council may, in its discretion, and after a recommendation from the Town Planning and Zoning Commission (the “PZC”), approve or conditionally approve a specific use permit unless the Town Council cannot find that the specific use will meet all the criteria set out in Code § 102-63(e)(2). 1 Code § 102-94(2) (“A specific use permit shall be obtained for any antenna or wireless communications facility that does not comply with the regulations contained in this division, other th bnban screening requirements. Relief from screening requirements shall require a variance and shall be decided by the zoning board of adjustment.”); see also Code § 102-93(1) (“Unless otherwise provided in this section, all wireless antenna facilities shall require a SUP.”). Town Council Resolution No. 25-12 Page 2 / 24 F.WHEREAS, in addition to the criteria set out in Code § 102-63(e)(2), the PZC and Town Council must assess all the considerations set out in Code § 102-92(3). G.WHEREAS, Vertical Bridge Development LLC (the “Applicant”) submitted a specific use permit application (the “Application”) to construct a 130-foot tower (the “Proposed Tower”) to support wireless communications facilities behind the Fire/EMS Station No. 1 at 2000 Dove Road, as shown in the project plans dated April 18, 2024 (the “Project Plans”). H.WHEREAS, if the Town Council votes to deny an application for a wireless communication facility, Code § 102-94(6) requires a final action in the form of a written report that contains these reasons for such a denial. I.WHEREAS, at a public meeting on December 19, 2022, the Town Council received a presentation about the Proposed Tower. J.WHEREAS, at a public meeting on September 25, 2023, the Town Council received a presentation about the Proposed Tower. K.WHEREAS, at a public meeting on March 4, 2024, the Town Council received a presentation about the Proposed Tower. L.WHEREAS, at a public meeting on May 7, 2024, the PZC received a presentation about the Proposed Tower. M.WHEREAS, on July 9, 2024, the PZC conducted a duly noticed public hearing to consider whether to recommend approval or denial for the Application to the Town Council; (2) received a report and presentation from Town staff; (3) received a presentation from the Applicant; (4) received testimony from other members of the public; (5) deliberated; and (6) voted to recommend that the Town Council deny the Application. Based on the record from that PZC hearing, the PZC recommended denial because the Proposed Tower (a) exceeded the applicable height limit, rear setback limit and residential setback requirements under the Code; (2) conflicted with community aesthetics and was incompatible with nearby residential uses; and (3) the Applicant failed to investigate less intrusive alternatives identified at public meetings and hearings conducted by the Town. N.WHEREAS, on July 15, 2024, the Town Council: (1) conducted a duly noticed public hearing to consider whether to approve or deny the Application; (2) received a report and presentation from Town staff, which included the PZC’s recommendation to deny the Application; (3) received a presentation from the Applicant; (4) received testimony from the public; (5) deliberated; (6) conducted a voice vote to deny the Application; but (7) did not have a written report with the findings for denial available for approval at that time. O.WHEREAS, on August 5, 2024, the Town Council approved minutes from the July 15, 2024, Town Council meeting that reflected the Town Council’s voice vote to deny the Application. Town Council Resolution No. 25-12 Page 3 / 24 P.WHEREAS, on March 24, 2025, the Town Council conducted a duly noticed public hearing to: (1) consider this Resolution, which contains a written report with findings for denial as required by Code § 102-94(6); (2) received a report and presentation from Town staff; (3) offered the Applicant an opportunity to present its case for approval; (4) received testimony from the public; (5) deliberated; (6) voted to adopt this Resolution. NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, HEREBY FINDS, DETERMINES AND RESOLVES AS FOLLOWS: RESOLUTION 1.Denial Affirmed. The Town Council affirms its vote on July 15, 2024, to deny the Application, and approves the detailed findings, reasons and evidence for such denial contained in this Resolution as the true and correct basis for the Town Council’s vote. 2.Findings and Evidence for Denial. (a)Background Facts. The facts set out in the “Background” provisions, above, are true and correct, and incorporated into the Town Council’s findings by this reference. (b)SUP Required. The Proposed Tower requires a specific use permit because it does not meet the regulations contained within Code Chapter 102, Article III, Division 2. (c)Specific Use Permit Findings. Pursuant to Code § 102-63(e)(2), the Town Council cannot make all the findings required to approve the Application for the reasons explained in the subsections below. Each subsection below identifies a required finding applicable to the Proposed Tower and provides the Town Council’s reasons why a finding can or cannot be made. (i)Code § 102-63(e)(2)(a) requires the Town Council to deny the Application unless the specific use will “[c]omplement or be compatible with the surrounding uses and community facilities”. Findings and Evidence: The Town Council cannot make this finding because: 1.The Proposed Tower does not comply with applicable height or rear setback limits. These development standards exist to “protect public health, safety and welfare.” See Westlake, Tex., Ordinance No. 426 at pp. 1–2 (emphasis added). For the reasons discussed below, the Town Council cannot find that the Proposed Tower will “enhance or promote the welfare of the area of the [specific use] and adjacent properties”, Code § 102-63(e)(2)(b), because the alleged benefits from the project do not outweigh the actual deviations from Town Council Resolution No. 25-12 Page 4 / 24 the applicable development standards designed to protect community welfare. First, the Proposed Tower violates the applicable maximum permissible height limit. Code § 102-124(a) limits structures to three stories or 50 feet in height. Code § 102-96(2) allows an additional 15 feet for wireless towers in non-residential districts (i.e., up to 65 feet), or up to a maximum 80 feet if the tower qualifies for additional height credits based on horizontal separation from the applicable setbacks. However, as shown on the Project Plans on page Z-3, the Proposed Tower would be 134-feet AGL. The Proposed Tower does not qualify for any additional height credits because it would encroach into the rear setback required by Code § 102-124(a) and thus exceeds the 65-foot height limit by 69 feet. Second, the Proposed Tower violates the applicable setback from the rear property line. Code § 102-124(a) requires a 50-foot setback between the Proposed Tower and the rear property line. However, as shown on the Project Plans on pages Z-1 and Z-2, the equipment enclosure associated with the Proposed Tower directly abuts the rear property line (i.e., a zero- foot setback) and the Proposed Tower itself would be less than 25 feet from the rear property line. Finally, the Town Council does not find that any benefits proffered by the Applicant justify such a substantial deviation from the applicable development standards designed to protect public welfare. Although the Applicant alleges that the Proposed Tower will provide enhanced wireless communication services to certain areas within the vicinity of the Proposed Tower, the Applicant failed to convince the Town Council that any of the five potential alternatives identified in the record as less intrusive means would be technically infeasible or potentially unavailable. These potential alternatives include: Fidelity Campus (1 Destiny Way, Westlake, TX 76262): This large commercial property abuts the proposed location. A tower or installation on any existing building within the campus would be further from and less visible to residential properties within Westlake. Although the Applicant alleges that an agreement could not be reached with the property owner at this location, the Applicant presented no evidence to show that any such discussions in fact occurred. Deloitte Campus (2501 Westlake Pkwy, Westlake, TX 76262): This large commercial property is less than one mile from the proposed location. A tower or installation on any existing building within the campus would be further from and less visible to residential Town Council Resolution No. 25-12 Page 5 / 24 properties within Westlake. The Applicant presented no evidence that it made any meaningful effort to investigate this alternative. VariSpace Southlake (1900 W Kirkwood Blvd, Southlake, TX 76092): On July 9, 2024, Applicant’s consultant (Ralph Wyngarden) identified this commercial location to the Planning and Zoning Commission as a tower with comparatively similar elevation within the vicinity. Use of an existing structure would be less intrusive than construction of an entirely new structure. This existing commercial structure would also be further from and less visible to residential properties within Westlake. The Applicant presented no evidence that it made any meaningful effort to investigate this alternative. Shopping Center (78 Andorra Dr, Westlake, TX 76262): On July 9, 2024, the 130-foot tower with the stone façade above the Starbucks at the commercial shopping center near the intersection of Davis Boulevard and Highway 114 was mentioned by Chair Coffey as an existing tall structure within less than one mile from the proposed location. Use of an existing structure would be less intrusive than construction of an entirely new structure. This existing commercial structure would also be further from and less visible to residential properties within Westlake. The Applicant presented no evidence that it made any meaningful effort to investigate this alternative. Small Cell Deployment (various locations throughout the Town): On July 9, 2024, Applicant’s consultant (Ralph Wyngarden) stated that all three Carriers combined would need approximately 45 small cells to replicate the anticipated service from the proposed 130-foot tower. At the same meeting, Verizon Wireless’ RF engineer stated that “we could go that route” with respect to small cells although it would be less effective than the proposed tower. At the same meeting, Town Manager Wade Carroll stated that AT&T had begun a model to use small cells rather than the proposed tower, and that AT&T would need approximately 29 small cells on poles between 30 and 40 feet high. Although small cells may require more facilities closer to residences, each small cell would be mounted on new or existing streetlights and/or utility poles, which would be lower in elevation and more common within the neighborhood than a 130- foot tower, and therefore less intrusive. The only written statements from the Applicant to justify this location concludes that: (1) “Fidelity Investments is unwilling to lease space for a site” and (2) “[t]he Town Council already agreed to this project and location in concept when it voted to enter into the lease agreement.” See Vertical Bridge, Narrative and Ordinance Compliance Statement at 2, 10 (Apr. 23, 2024). The first statement amounts to an assertion without evidence. The Town Council Resolution No. 25-12 Page 6 / 24 second statement is factually false because the lease agreement between the Town and Vertical Bridge Development LLC is expressly subject to zoning approval for the final project, and the Town Council cannot bargain away its discretionary zoning authority through a private contract. The Proposed Tower conflicts with the applicable development standards in the Code and will not complement or be compatible with other uses nearby that do conform to such standards. Any complement to, or compatibility with, nearby uses is overshadowed by the unjustifiably large deviation from the applicable standards. Accordingly, the Town Council cannot make the required finding under Code § 102-63(e)(2)(a). 2.As noted by Planning and Zoning Commissioner Lanny Huggins at the May 7, 2024, meeting, the Proposed Tower detracts from the view preservation goals identified in the Westlake Comprehensive Plan. View preservation, and the desire to maintain a pastoral character, are core goals and priorities in the Comprehensive Plan. See Westlake Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 111 –19. General Goal #1 in the Comprehensive Plan states that “[f]uture views from residential areas should present qualities of vista, natural-ness, pastoral/ agricultural character, and sense of openness that exist today.” See Westlake Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 122. This goal should be accomplished by “[m]aintain[ing] views of a largely undeveloped foreground as Westlake grows . . . [and] view sheds that contain essential elements of Westlake’s pastoral character.” See Westlake Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 122. General Goal #2 states that “[f]uture development should embody recognizable quality of building and site design as well as maintain an overall balance and continuity between commercial and residential portions of the Town.” See Westlake Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 123. This should be accomplished by “[p]reserve[ing] the sense of balance between residential and commercial development by promoting continuity of development forms, pallet of landscaping, meaningful/ functional buffers, built area to land area ratios, and character of the street experience.” See Westlake Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 123. These goals sustain both the Town’s character and property values within the community. Westlake Comprehensive Plan Update, Assessments at 74. Views toward Highway 114 are especially important because no “high elevation landforms” exist to screen the view from the residential areas below Dove Road. See Westlake Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 129. For this reason, the Westlake Comprehensive Plan identifies the area around the Proposed Tower as “open space” that should be subject to development restrictions to protect Town Council Resolution No. 25-12 Page 7 / 24 the unobstructed viewsheds from the residences to the south. See Westlake Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 134. The Proposed Tower directly conflicts the view preservation goals in the Comprehensive Plan because it exceeds the zone height limit within the viewshed for the Pastoral Zone. See Westlake Comprehensive Plan Update, Plan Elements: Land Use Plan at 147–48. The Proposed Tower is in an area designated by the Westlake Comprehensive Plan as “Open Space”. “The intent of the Open Space District is to preserve vistas and view corridors and, thereby, preserve the essence of Westlake’s pastoral setting as it experiences increasing amounts of commercial and residential development. The Open Space Land Use District is meant to be primarily undeveloped with the landmark landforms of the Town remaining in their natural condition, thereby preserving important views as well as natural and rural settings.” Westlake Comprehensive Plan Update, Plan Elements: Land Use Plan at 158. The Proposed Tower would dramatically spike upwards from the lowland area, with no natural or manufactured elements nearby to offset its impact on the viewshed from the Pastoral Zone. The Proposed Tower conflicts with the policies in the Comprehensive Plan and will not complement or be compatible with other uses nearby that do conform to the Comprehensive Plan’s policies. Accordingly, the Town Council cannot make the required finding under Code § 102-63(e)(2)(a). (ii) Code § 102-63(e)(2)(b) requires the Town Council to deny the Application unless the specific use will “[c]ontribute to, enhance or promote the welfare of the area of the [specific use] and adjacent properties”. Findings and Evidence: The Town Council cannot make this finding because: 1. The Proposed Tower does not comply with applicable height or rear setback limits. These development standards exist to “protect public health, safety and welfare.” See Westlake, Tex., Ordinance No. 426 at pp. 1–2 (emphasis added). For the reasons discussed below, the Town Council cannot find that the Proposed Tower will “enhance or promote the welfare of the area of the [specific use] and adjacent properties”, Code § 102-63(e)(2)(b), because the alleged benefits from the project do not outweigh the actual deviations from the applicable development standards designed to protect community welfare. First, the Proposed Tower violates the applicable maximum permissible height limit. Code § 102-124(a) limits structures to three stories or 50 feet in height. Code § 102-96(2) allows an additional 15 feet for wireless towers in non-residential districts (i.e., up to 65 feet), or up to a maximum 80 feet if the tower qualifies for additional height credits based on horizontal Town Council Resolution No. 25-12 Page 8 / 24 separation from the applicable setbacks. However, as shown on the Project Plans on page Z-3, the Proposed Tower would be 134-feet AGL. The Proposed Tower does not qualify for any additional height credits because it would encroach into the rear setback required by Code § 102-124(a) and thus exceeds the 65-foot height limit by 69 feet. Second, the Proposed Tower violates the applicable setback from the rear property line. Code § 102-124(a) requires a 50-foot setback between the Proposed Tower and the rear property line. However, as shown on the Project Plans on pages Z-1 and Z-2, the equipment enclosure associated with the Proposed Tower directly abuts the rear property line (i.e., a zero- foot setback) and the Proposed Tower itself would be less than 25 feet from the rear property line. Finally, the Town Council does not find that any benefits proffered by the Applicant justify such a substantial deviation from the applicable development standards designed to protect public welfare. Although the Applicant alleges that the Proposed Tower will provide enhanced wireless communication services to certain areas within the vicinity of the Proposed Tower, the Applicant failed to convince the Town Council that any of the five potential alternatives identified in the record as less intrusive means would be technically infeasible or potentially unavailable. These potential alternatives include: Fidelity Campus (1 Destiny Way, Westlake, TX 76262): This large commercial property abuts the proposed location. A tower or installation on any existing building within the campus would be further from and less visible to residential properties within Westlake. Although the Applicant alleges that an agreement could not be reached with the property owner at this location, the Applicant presented no evidence to show that any such discussions in fact occurred. Deloitte Campus (2501 Westlake Pkwy, Westlake, TX 76262): This large commercial property is less than one mile from the proposed location. A tower or installation on any existing building within the campus would be further from and less visible to residential properties within Westlake. The Applicant presented no evidence that it made any meaningful effort to investigate this alternative. VariSpace Southlake (1900 W Kirkwood Blvd, Southlake, TX 76092): On July 9, 2024, Applicant’s consultant (Ralph Wyngarden) identified this commercial location to the Planning and Zoning Commission as a tower with comparatively similar elevation within the vicinity. Use of an existing structure would be less intrusive than construction of an entirely new structure. This existing commercial Town Council Resolution No. 25-12 Page 9 / 24 structure would also be further from and less visible to residential properties within Westlake. The Applicant presented no evidence that it made any meaningful effort to investigate this alternative. Shopping Center (78 Andorra Dr, Westlake, TX 76262): On July 9, 2024, the 130-foot tower with the stone façade above the Starbucks at the commercial shopping center near the intersection of Davis Boulevard and Highway 114 was mentioned by Chair Coffey as an existing tall structure within less than one mile from the proposed location. Use of an existing structure would be less intrusive than construction of an entirely new structure. This existing commercial structure would also be further from and less visible to residential properties within Westlake. The Applicant presented no evidence that it made any meaningful effort to investigate this alternative. Small Cell Deployment (various locations throughout the Town): On July 9, 2024, Applicant’s consultant (Ralph Wyngarden) stated that all three Carriers combined would need approximately 45 small cells to replicate the anticipated service from the proposed 130-foot tower. At the same meeting, Verizon Wireless’ RF engineer stated that “we could go that route” with respect to small cells although it would be less effective than the proposed tower. At the same meeting, Town Manager Wade Carroll stated that AT&T had begun a model to use small cells rather than the proposed tower, and that AT&T would need approximately 29 small cells on poles between 30 and 40 feet high. Although small cells may require more facilities closer to residences, each small cell would be mounted on new or existing streetlights and/or utility poles, which would be lower in elevation and more common within the neighborhood than a 130- foot tower, and therefore less intrusive. The only written statements from the Applicant to justify this location concludes that: (1) “Fidelity Investments is unwilling to lease space for a site” and (2) “[t]he Town Council already agreed to this project and location in concept when it voted to enter into the lease agreement.” See Vertical Bridge, Narrative and Ordinance Compliance Statement at 2, 10 (Apr. 23, 2024). The first statement amounts to an assertion without evidence. The second statement is factually false because the lease agreement between the Town and Vertical Bridge Development LLC is expressly subject to zoning approval for the final project, and the Town Council cannot bargain away its discretionary zoning authority through a private contract. Accordingly, the Town Council cannot make the finding required by Code § 102-63(e)(2)(b). The Proposed Tower does not comply with applicable development standards designed to protect public welfare, and the Applicant has not convincingly ruled out any less intrusive alternatives to Town Council Resolution No. 25-12 Page 10 / 24 justify such a significant deviation from the applicable development standards in the Code. 2. Conflicts with policies and goals in the Comprehensive Plan designed to promote and protect the public welfare preclude the finding required under Code § 102-63(e)(2)(b). As noted by Planning and Zoning Commissioner Lanny Huggins at the May 7, 2024, meeting, the Proposed Tower detracts from the view preservation goals identified in the Westlake Comprehensive Plan. View preservation, and the desire to maintain a pastoral character, are core goals and priorities in the Comprehensive Plan. See Westlake Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 111 –19. General Goal #1 in the Comprehensive Plan states that “[f]uture views from residential areas should present qualities of vista, natural-ness, pastoral/ agricultural character, and sense of openness that exist today.” See Westlake Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 122. This goal should be accomplished by “[m]aintain[ing] views of a largely undeveloped foreground as Westlake grows . . . [and] view sheds that contain essential elements of Westlake’s pastoral character.” See Westlake Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 122. General Goal #2 states that “[f]uture development should embody recognizable quality of building and site design as well as maintain an overall balance and continuity between commercial and residential portions of the Town.” See Westlake Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 123. This should be accomplished by “[p]reserve[ing] the sense of balance between residential and commercial development by promoting continuity of development forms, pallet of landscaping, meaningful/ functional buffers, built area to land area ratios, and character of the street experience.” See Westlake Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 123. These goals sustain both the Town’s character and property values within the community. Westlake Comprehensive Plan Update, Assessments at 74. Views toward Highway 114 are especially important because no “high elevation landforms” exist to screen the view from the residential areas below Dove Road. See Westlake Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 129. For this reason, the Westlake Comprehensive Plan identifies the area around the Proposed Tower as “open space” that should be subject to development restrictions to protect the unobstructed viewsheds from the residences to the south. See Westlake Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 134. The Proposed Tower directly conflicts the view preservation goals in the Comprehensive Plan because it exceeds the zone height limit within the Town Council Resolution No. 25-12 Page 11 / 24 viewshed for the Pastoral Zone. See Westlake Comprehensive Plan Update, Plan Elements: Land Use Plan at 147–48. The Proposed Tower is in an area designated by the Westlake Comprehensive Plan as “Open Space”. “The intent of the Open Space District is to preserve vistas and view corridors and, thereby, preserve the essence of Westlake’s pastoral setting as it experiences increasing amounts of commercial and residential development. The Open Space Land Use District is meant to be primarily undeveloped with the landmark landforms of the Town remaining in their natural condition, thereby preserving important views as well as natural and rural settings.” Westlake Comprehensive Plan Update, Plan Elements: Land Use Plan at 158. The Proposed Tower would dramatically spike upwards from the lowland area, with no natural or manufactured elements nearby to offset its impact on the viewshed from the Pastoral Zone. The Comprehensive Plan is designed to promote and protect public health, safety and welfare. Although the Town Council does not oppose any development in this area, including wireless facilities, the Proposed Tower’s excessive height swerves too far from the clear land-use goals in the Comprehensive Plan. Accordingly, the Town Council cannot make the required finding under Code § 102-63(e)(2)(b). (iii)Code § 102-63(e)(2)(c) requires the Town Council to deny the Application unless the specific use will “[n]ot be detrimental to the public health, safety or general welfare”. Findings and Evidence: The Town Council cannot make this finding because: 1.The Proposed Tower does not comply with applicable height or rear setback limits. These development standards exist to “protect public health, safety and welfare.” See Westlake, Tex., Ordinance No. 426 at pp. 1–2. For the reasons discussed below, the Town Council cannot find that the Proposed Tower will “[n]ot be detrimental to the public health, safety or general welfare”, Code § 102-63(e)(2)(c), because the alleged benefits from the project do not outweigh the actual deviations from the applicable development standards designed to protect community welfare. First, the Proposed Tower violates the applicable maximum permissible height limit. Code § 102-124(a) limits structures to three stories or 50 feet in height. Code § 102-96(2) allows an additional 15 feet for wireless towers in non-residential districts (i.e., up to 65 feet), or up to a maximum 80 feet if the tower qualifies for additional height credits based on horizontal separation from the applicable setbacks. However, as shown on the Project Plans on page Z-3, the Proposed Tower would be 134-feet AGL. The Proposed Tower does not qualify for any additional height credits because it would encroach into the rear setback required by Code § 102-124(a) and thus exceeds the 65-foot height limit by 69 feet. Town Council Resolution No. 25-12 Page 12 / 24 Second, the Proposed Tower violates the applicable setback from the rear property line. Code § 102-124(a) requires a 50-foot setback between the Proposed Tower and the rear property line. However, as shown on the Project Plans on pages Z-1 and Z-2, the equipment enclosure associated with the Proposed Tower directly abuts the rear property line (i.e., a zero- foot setback) and the Proposed Tower itself would be less than 25 feet from the rear property line. Finally, the Town Council does not find that any benefits proffered by the Applicant justify such a substantial deviation from the applicable development standards designed to protect public welfare. Although the Applicant alleges that the Proposed Tower will provide enhanced wireless communication services to certain areas within the vicinity of the Proposed Tower, the Applicant failed to convince the Town Council that any of the five potential alternatives identified in the record as less intrusive means would be technically infeasible or potentially unavailable. These potential alternatives include: Fidelity Campus (1 Destiny Way, Westlake, TX 76262): This large commercial property abuts the proposed location. A tower or installation on any existing building within the campus would be further from and less visible to residential properties within Westlake. Although the Applicant alleges that an agreement could not be reached with the property owner at this location, the Applicant presented no evidence to show that any such discussions in fact occurred. Deloitte Campus (2501 Westlake Pkwy, Westlake, TX 76262): This large commercial property is less than one mile from the proposed location. A tower or installation on any existing building within the campus would be further from and less visible to residential properties within Westlake. The Applicant presented no evidence that it made any meaningful effort to investigate this alternative. VariSpace Southlake (1900 W Kirkwood Blvd, Southlake, TX 76092): On July 9, 2024, Applicant’s consultant (Ralph Wyngarden) identified this commercial location to the Planning and Zoning Commission as a tower with comparatively similar elevation within the vicinity. Use of an existing structure would be less intrusive than construction of an entirely new structure. This existing commercial structure would also be further from and less visible to residential properties within Westlake. The Applicant presented no evidence that it made any meaningful effort to investigate this alternative. Town Council Resolution No. 25-12 Page 13 / 24 Shopping Center (78 Andorra Dr, Westlake, TX 76262): On July 9, 2024, the 130-foot tower with the stone façade above the Starbucks at the commercial shopping center near the intersection of Davis Boulevard and Highway 114 was mentioned by Chair Coffey as an existing tall structure within less than one mile from the proposed location. Use of an existing structure would be less intrusive than construction of an entirely new structure. This existing commercial structure would also be further from and less visible to residential properties within Westlake. The Applicant presented no evidence that it made any meaningful effort to investigate this alternative. Small Cell Deployment (various locations throughout the Town): On July 9, 2024, Applicant’s consultant (Ralph Wyngarden) stated that all three Carriers combined would need approximately 45 small cells to replicate the anticipated service from the proposed 130-foot tower. At the same meeting, Verizon Wireless’ RF engineer stated that “we could go that route” with respect to small cells although it would be less effective than the proposed tower. At the same meeting, Town Manager Wade Carroll stated that AT&T had begun a model to use small cells rather than the proposed tower, and that AT&T would need approximately 29 small cells on poles between 30 and 40 feet high. Although small cells may require more facilities closer to residences, each small cell would be mounted on new or existing streetlights and/or utility poles, which would be lower in elevation and more common within the neighborhood than a 130- foot tower, and therefore less intrusive. The only written statements from the Applicant to justify this location concludes that: (1) “Fidelity Investments is unwilling to lease space for a site” and (2) “[t]he Town Council already agreed to this project and location in concept when it voted to enter into the lease agreement.” See Vertical Bridge, Narrative and Ordinance Compliance Statement at 2, 10 (Apr. 23, 2024). The first statement amounts to an assertion without evidence. The second statement is factually false because the lease agreement between the Town and Vertical Bridge Development LLC is expressly subject to zoning approval for the final project, and the Town Council cannot bargain away its discretionary zoning authority through a private contract. Accordingly, the Town Council cannot make the finding required by Code § 102-63(e)(2)(c). The Proposed Tower does not comply with applicable development standards designed to protect public welfare, and the Applicant has not convincingly ruled out any less intrusive alternatives to justify such a significant deviation from the applicable development standards in the Code. Town Council Resolution No. 25-12 Page 14 / 24 2. As noted by Planning and Zoning Commissioner Lanny Huggins at the May 7, 2024, meeting, the Proposed Tower detracts from the view preservation goals identified in the Westlake Comprehensive Plan. View preservation, and the desire to maintain a pastoral character, are core goals and priorities in the Comprehensive Plan. See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 111–19. General Goal #1 in the Comprehensive Plan states that “[f]uture views from residential areas should present qualities of vista, natural-ness, pastoral/ agricultural character, and sense of openness that exist today.” See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 122. This goal should be accomplished by “[m]aintain[ing] views of a largely undeveloped foreground as Westlake grows . . . [and] view sheds that contain essential elements of Westlake’s pastoral character.” See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 122. General Goal #2 states that “[f]uture development should embody recognizable quality of building and site design as well as maintain an overall balance and continuity between commercial and residential portions of the Town.” See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 123. This should be accomplished by “[p]reserve[ing] the sense of balance between residential and commercial development by promoting continuity of development forms, pallet of landscaping, meaningful/ functional buffers, built area to land area ratios, and character of the street experience.” See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 123. These goals sustain both the Town’s character and property values within the community. Comprehensive Plan Update, Assessments at 74. Views toward Highway 114 are especially important because no “high elevation landforms” exist to screen the view from the residential areas below Dove Road. See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 129. For this reason, the Westlake Comprehensive Plan identifies the area around the Proposed Tower as “open space” that should be subject to development restrictions to protect the unobstructed viewsheds from the residences to the south. See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 134. The Proposed Tower directly conflicts the view preservation goals in the Comprehensive Plan because it exceeds the zone height limit within the viewshed for the Pastoral Zone. See Comprehensive Plan Update, Plan Elements: Land Use Plan at 147–48. The Proposed Tower is in an area designated by the Westlake Comprehensive Plan as “Open Space”. “The intent of the Open Space District is to preserve vistas and view corridors and, thereby, preserve the essence of Westlake’s pastoral setting as it experiences increasing amounts of commercial and residential development. The Open Space Land Use District is meant to be primarily undeveloped with the landmark landforms of the Town remaining in their Town Council Resolution No. 25-12 Page 15 / 24 natural condition, thereby preserving important views as well as natural and rural settings.” Comprehensive Plan Update, Plan Elements: Land Use Plan at 158. The Proposed Tower would dramatically spike upwards from the lowland area, with no natural or manufactured elements nearby to offset its impact on the viewshed from the Pastoral Zone. The Comprehensive Plan is designed to promote and protect public health, safety and welfare. Although the Town Council does not oppose any development in this area, including wireless facilities, the Proposed Tower’s excessive height swerves too far from the clear land-use goals in the Comprehensive Plan. Accordingly, the Town Council cannot make the required finding under Code § 102-63(e)(2)(c). (iv) Code § 102-63(e)(2)(d) requires the Town Council to deny the Application unless the specific use will “[c]onform in all other respects to all applicable zoning regulations and standards”. Findings and Evidence: The Town Council cannot make this finding because the considerations required for wireless communication facilities weigh against approval, for the reasons described below: (A) Code § 102-94(3)(a) requires the Town Council to consider “[t]he need to provide wireless service to the populace”. Findings and Evidence: This consideration weighs against approval because: 1. The record contains conflicting evidence about the need for improved personal wireless services. Whereas Verizon Wireless’ RF engineer described the gaps as significant, members of the public described either no concerns with their service or mere dead spots. Although the Town Council generally agrees that improved personal wireless communication services are important and does not intend to deny new personal wireless service facilities when consistent with the Code or otherwise required by law, the record before the Town Council does not show a need for a facility that deviates so significantly from the applicable development standards and policies in the Comprehensive Plan. Thus, the Town Council finds that the Applicant failed to show a need for this particular facility, at this particular location, as the only or least intrusive means to meet an alleged need for improved personal wireless services within the area around the Proposed Tower. 2. The previous finding is buttressed by the Applicant’s failure to show that no less intrusive alternative could serve its customers’ objectives. that the Proposed Tower is the least intrusive means to provide improved personal wireless services to the Town. These potential alternatives include: Town Council Resolution No. 25-12 Page 16 / 24 Fidelity Campus (1 Destiny Way, Westlake, TX 76262): This large commercial property abuts the proposed location. A tower or installation on any existing building within the campus would be further from and less visible to residential properties within Westlake. Although the Applicant alleges that an agreement could not be reached with the property owner at this location, the Applicant presented no evidence to show that any such discussions in fact occurred. Deloitte Campus (2501 Westlake Pkwy, Westlake, TX 76262): This large commercial property is less than one mile from the proposed location. A tower or installation on any existing building within the campus would be further from and less visible to residential properties within Westlake. The Applicant presented no evidence that it made any meaningful effort to investigate this alternative. VariSpace Southlake (1900 W Kirkwood Blvd, Southlake, TX 76092): On July 9, 2024, Applicant’s consultant (Ralph Wyngarden) identified this commercial location to the Planning and Zoning Commission as a tower with comparatively similar elevation within the vicinity. Use of an existing structure would be less intrusive than construction of an entirely new structure. This existing commercial structure would also be further from and less visible to residential properties within Westlake. The Applicant presented no evidence that it made any meaningful effort to investigate this alternative. Shopping Center (78 Andorra Dr, Westlake, TX 76262): On July 9, 2024, the 130-foot tower with the stone façade above the Starbucks at the commercial shopping center near the intersection of Davis Boulevard and Highway 114 was mentioned by Chair Coffey as an existing tall structure within less than one mile from the proposed location. Use of an existing structure would be less intrusive than construction of an entirely new structure. This existing commercial structure would also be further from and less visible to residential properties within Westlake. The Applicant presented no evidence that it made any meaningful effort to investigate this alternative. Small Cell Deployment (various locations throughout the Town): On July 9, 2024, Applicant’s consultant (Ralph Wyngarden) stated that all three Carriers combined would need approximately 45 small cells to replicate the anticipated service from the proposed 130-foot tower. At the same meeting, Verizon Wireless’ RF engineer stated that “we could go that route” with respect to small cells although it would be less effective than the proposed tower. At the same meeting, Town Manager Wade Carroll stated that AT&T had begun Town Council Resolution No. 25-12 Page 17 / 24 a model to use small cells rather than the proposed tower, and that AT&T would need approximately 29 small cells on poles between 30 and 40 feet high. Although small cells may require more facilities closer to residences, each small cell would be mounted on new or existing streetlights and/or utility poles, which would be lower in elevation and more common within the neighborhood than a 130- foot tower, and therefore less intrusive. The only written statements from the Applicant to justify this location concludes that: (1) “Fidelity Investments is unwilling to lease space for a site” and (2) “[t]he Town Council already agreed to this project and location in concept when it voted to enter into the lease agreement.” See Vertical Bridge, Narrative and Ordinance Compliance Statement at 2, 10 (Apr. 23, 2024). The first statement amounts to an assertion without evidence. The second statement is factually false because the lease agreement between the Town and Vertical Bridge Development LLC is expressly subject to zoning approval for the final project, and the Town Council cannot bargain away its discretionary zoning authority through a private contract. The Town Council would prefer multiple shorter facilities placed throughout the community to address a potentially broader need without a 134-foot tower in an area completely visible to nearby residences. Accordingly, the Town Council finds that the Applicant did not demonstrate a need for this facility and/or location because it failed to rule out others that would be less intrusive. (B) Code § 102-94(3)(b) requires the Town Council to consider the “[e]ffect on the value of the surrounding property”. Findings and Evidence: This consideration weighs against approval because: Testimony from Susan Matthews, a resident and realtor with 14 years’ experience in the community, raised “serious concerns” that this project will adversely affect property values on Gaillardia Court, Nighthawk Court, Little Bluestem Court and Falcon Pass (all with homes valued between $4 million and $6 million, according to Ms. Matthews). Her research indicated that proximity to highly visible wireless towers will adversely impact both the sale value and time-on-market for these homes. Her opinion was that a similar adverse affect would be observed in this case. Applicant described a “report” or “study” that Applicant alleged would show that proximity to wireless facilities either did not affect or enhanced real property values. However, no such “report” or “study” was produced or made available to the Town Council at the July 15, 2024, public hearing. Town Council Resolution No. 25-12 Page 18 / 24 The Proposed Tower is more than 2 or 3 times taller than the surrounding uses and located within a view shed designated under the Comprehensive Plan. Comments from some community members have compared the Proposed Tower to the Statue of Liberty without the base or more than twice the height of a field light at the high school stadium. PZC Chair Coffey and others described the Proposed Tower as a “monstrosity” due to its size and visibility. The Town Council agrees with this characterization and finds that the out-of- scale development is likely to adversely impact the values of nearby properties. Accordingly, the Town Council finds that this factor weighs against approval. The Town Council makes no conclusions and bases no decision on any real or perceived environmental effects from the proposed the radiofrequency emissions. (C) Code § 102-94(3)(c) requires the Town Council to consider “[p]otential for interference with the use of surrounding properties”. Findings and Evidence: This consideration weighs against approval because views obstructed by the Proposed Tower conflict with the goals in the Comprehensive Plan and thus interferes with the use of surrounding properties. As noted by Planning and Zoning Commissioner Lanny Huggins at the May 7, 2024, meeting, the Proposed Tower detracts from the view preservation goals identified in the Comprehensive Plan. View preservation, and the desire to maintain a pastoral character, are core goals and priorities in the Comprehensive Plan. See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 111–19. General Goal #1 in the Comprehensive Plan states that “[f]uture views from residential areas should present qualities of vista, natural-ness, pastoral/ agricultural character, and sense of openness that exist today.” See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 122. This goal should be accomplished by “[m]aintain[ing] views of a largely undeveloped foreground as Westlake grows . . . [and] view sheds that contain essential elements of Westlake’s pastoral character.” See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 122. General Goal #2 states that “[f]uture development should embody recognizable quality of building and site design as well as maintain an overall balance and continuity between commercial and residential portions of the Town.” See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 123. This should be accomplished by “[p]reserve[ing] the sense of balance between residential and commercial development by promoting continuity of development forms, pallet of landscaping, meaningful/ functional buffers, built area to land area ratios, and character of the street experience.” See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 123. These goals sustain both the Town’s character and property values within the community. Comprehensive Plan Update, Assessments at 74. Town Council Resolution No. 25-12 Page 19 / 24 Views toward Highway 114 are especially important because no “high elevation landforms” exist to screen the view from the residential areas below Dove Road. See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 129. For this reason, the Comprehensive Plan identifies the area around the Proposed Tower as “open space” that should be subject to development restrictions to protect the unobstructed viewsheds from the residences to the south. See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 134. The Proposed Tower directly conflicts the view preservation goals in the Comprehensive Plan because it exceeds the zone height limit within the viewshed for the Pastoral Zone. See Comprehensive Plan Update, Plan Elements: Land Use Plan at 147–48. The Proposed Tower is in an area designated by the Westlake Comprehensive Plan as “Open Space”. “The intent of the Open Space District is to preserve vistas and view corridors and, thereby, preserve the essence of Westlake’s pastoral setting as it experiences increasing amounts of commercial and residential development. The Open Space Land Use District is meant to be primarily undeveloped with the landmark landforms of the Town remaining in their natural condition, thereby preserving important views as well as natural and rural settings.” Comprehensive Plan Update, Plan Elements: Land Use Plan at 158. The Proposed Tower would dramatically spike upwards from the lowland area, with no natural or manufactured elements nearby to offset its impact on the viewshed from the Pastoral Zone. Based on the record before the Town Council, the views most impacted by the Proposed Tower are the same properties identified by the local realtor, Ms. Matthews, on Gaillardia Court, Nighthawk Court, Little Bluestem Court and Falcon Pass. Interference with the views from these and other nearby properties interferes with the use of those properties. Accordingly, the Town Council finds that this factor weighs against approval. (D) Code § 102-94(3)(d) requires the Town Council to consider “[a]ethetics”. Findings and Evidence: This consideration weighs against approval because: 1. The Proposed Tower violates the applicable setback from the rear property line. Code § 102-124(a) requires a 50-foot setback between the Proposed Tower and the rear property line. However, as shown on the Project Plans on pages Z-1 and Z-2, the equipment enclosure associated with the Proposed Tower directly abuts the rear property line (i.e., a zero-foot setback) and the Proposed Tower itself would be less than 25 feet from the rear property line. Development standards, like rear setbacks, are intended to preserve the Town’s aesthetic quality. Accordingly, the Town Council finds that the Proposed Tower is not Town Council Resolution No. 25-12 Page 20 / 24 compatible with nearby properties because it violates the minimum rear setback requirements under Code § 102-124(a). 2. The Proposed Tower violates the applicable maximum permissible height limit. Code § 102-124(a) limits structures to three stories or 50 feet in height. Code § 102-96(2) allows an additional 15 feet for wireless towers in non-residential districts (i.e., up to 65 feet), or up to a maximum 80 feet if the tower qualifies for additional height credits based on horizontal separation from the applicable setbacks. However, as shown on the Project Plans on page Z-3, the Proposed Tower would be 134-feet AGL. The Proposed Tower does not qualify for any additional height credits because it would encroach into the rear setback required by Code § 102-124(a) and thus exceeds the 65-foot height limit by 69 feet. Development standards, like maximum height limits, are intended to preserve the Town’s aesthetic quality. Accordingly, the Town Council finds that the Proposed Tower is not compatible with nearby properties because it violates the maximum height limits under Code §§ 102-124(a) and 102-96(2). 3. The Proposed Tower is out-of-scale with structures on the Property and nearby residential properties across Dove Road. The highest point on the Fire Station at the same Property is approximately 50 feet AGL; the nearby residences are generally two stories and limited to 35 feet AGL; and the highest point on the parking structure to the north is approximately 50 feet AGL. The Proposed Tower would be approximately 2.7 times taller than the Fire Station, 3.8 times taller than the nearby residences and 2.7 times taller than the parking structure to the north. The nearest similar structure is an existing tower on a commercial strip mall near Highway 114 (78 Andorra Dr, Westlake, TX 76262), which is approximately 0.71 miles north. Accordingly, the Proposed Tower would be significantly taller than, and out-of-scale with, any nearby structure. 4. Views obstructed by the Proposed Tower conflict with the goals in the Comprehensive Plan and thus adversely impacts aesthetic considerations. As noted by Planning and Zoning Commissioner Lanny Huggins at the May 7, 2024, meeting, the Proposed Tower detracts from the view preservation goals identified in the Comprehensive Plan. View preservation, and the desire to maintain a pastoral character, are core goals and priorities in the Comprehensive Plan. See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 111–19. General Goal #1 in the Comprehensive Plan states that “[f]uture views from residential areas should present qualities of vista, natural-ness, pastoral/ agricultural character, and sense of openness that exist today.” See Comprehensive Plan, Goals and Citizen Priorities and Town Council Resolution No. 25-12 Page 21 / 24 Framework Plan at 122. This goal should be accomplished by “[m]aintain[ing] views of a largely undeveloped foreground as Westlake grows . . . [and] view sheds that contain essential elements of Westlake’s pastoral character.” See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 122. General Goal #2 states that “[f]uture development should embody recognizable quality of building and site design as well as maintain an overall balance and continuity between commercial and residential portions of the Town.” See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 123. This should be accomplished by “[p]reserve[ing] the sense of balance between residential and commercial development by promoting continuity of development forms, pallet of landscaping, meaningful/ functional buffers, built area to land area ratios, and character of the street experience.” See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 123. These goals sustain both the Town’s character and property values within the community. Comprehensive Plan Update, Assessments at 74. Views toward Highway 114 are especially important because no “high elevation landforms” exist to screen the view from the residential areas below Dove Road. See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 129. For this reason, the Comprehensive Plan identifies the area around the Proposed Tower as “open space” that should be subject to development restrictions to protect the unobstructed viewsheds from the residences to the south. See Comprehensive Plan, Goals and Citizen Priorities and Framework Plan at 134. The Proposed Tower directly conflicts the view preservation goals in the Comprehensive Plan because it exceeds the zone height limit within the viewshed for the Pastoral Zone. See Comprehensive Plan Update, Plan Elements: Land Use Plan at 147–48. The Proposed Tower is in an area designated by the Westlake Comprehensive Plan as “Open Space”. “The intent of the Open Space District is to preserve vistas and view corridors and, thereby, preserve the essence of Westlake’s pastoral setting as it experiences increasing amounts of commercial and residential development. The Open Space Land Use District is meant to be primarily undeveloped with the landmark landforms of the Town remaining in their natural condition, thereby preserving important views as well as natural and rural settings.” Comprehensive Plan Update, Plan Elements: Land Use Plan at 158. The Proposed Tower would dramatically spike upwards from the lowland area, with no natural or manufactured elements nearby to offset its impact on the viewshed from the Pastoral Zone. Town Council Resolution No. 25-12 Page 22 / 24 Based on the record before the Town Council, the Proposed Tower will adversely impact views from several nearby residential properties on Gaillardia Court, Nighthawk Court, Little Bluestem Court and Falcon Pass. Focusing only on aesthetics, the Town Council finds that the Proposed Tower is just too tall for the proposed location and the Applicant has not adequately vetted potential alternative sites identified in the record. Accordingly, the Town Council finds that this factor weighs against approval. (E) Code § 102-94(3)(e) requires the Town Council to consider “[c]ompatibility with nearby properties”. Findings and Evidence: This consideration weighs against approval because: 1. The Proposed Tower violates the applicable setback from the rear property line. Code § 102-124(a) requires a 50-foot setback between the Proposed Tower and the rear property line. However, as shown on the Project Plans on pages Z-1 and Z-2, the equipment enclosure associated with the Proposed Tower directly abuts the rear property line (i.e., a zero-foot setback) and the Proposed Tower itself would be less than 25 feet from the rear property line. Accordingly, the Town Council finds that the Proposed Tower is not compatible with nearby properties because it violates the minimum rear setback requirements under Code § 102-124(a). 2. The Proposed Tower violates the applicable maximum permissible height limit. Code § 102-124(a) limits structures to three stories or 50 feet in height. Code § 102-96(2) allows an additional 15 feet for wireless towers in non-residential districts (i.e., up to 65 feet), or up to a maximum 80 feet if the tower qualifies for additional height credits based on horizontal separation from the applicable setbacks. However, as shown on the Project Plans on page Z-3, the Proposed Tower would be 134-feet AGL. The Proposed Tower does not qualify for any additional height credits because it would encroach into the rear setback required by Code § 102-124(a) and thus exceeds the 65-foot height limit by 69 feet. Accordingly, the Town Council finds that the Proposed Tower is not compatible with nearby properties because it violates the maximum height limits under Code §§ 102-124(a) and 102-96(2). 3. The Proposed Tower is out-of-scale with structures on the Property and nearby residential properties across Dove Road. The highest point on the Fire Station at the same Property is approximately 50 feet AGL; the nearby residences are generally two stories and limited to 35 feet AGL; and the highest point on the parking structure to the north is approximately 50 feet AGL. The Proposed Tower would be approximately 2.7 times taller than the Fire Station, 3.8 times taller than Town Council Resolution No. 25-12 Page 23 / 24 the nearby residences and 2.7 times taller than the parking structure to the north. The nearest similar structure is an existing tower on a commercial strip mall near Highway 114 (78 Andorra Dr, Westlake, TX 76262), which is approximately 0.71 miles north. Accordingly, the Town Council finds that the Proposed Tower is not compatible with nearby properties because it would be nearly three or four times larger than existing structures on nearby properties. (F)Code § 102-94(3)(f) requires the Town Council to consider “[p]rovisions of 47 CFR 25.104.” Findings and Evidence: This consideration is neutral because these federal regulations concern satellite dish antennas and therefore do not apply to the Proposed Tower. (G)Code § 102-94(3)(g) requires the Town Council to consider “[u]nique conditions that govern reception on a lot.” Findings and Evidence: This consideration weighs against approval because the evidence in the administrative record does not show any unique circumstances that justify the significant deviations from the Code and Comprehensive Plan. As noted above, the Proposed Tower would violate the zone height limit and rear setback requirement under the Code, and conflict with the viewshed and community aesthetic principles under the Comprehensive Plan. The administrative record includes at least five alternative sites that could be used for new towers or attachments to existing structures. Both the PZC and Town Council requested additional analysis into alternatives. Rather than provide meaningful reasons why such alternatives were technically infeasible or practically unavailable, the Applicant merely reiterated its purported need for new facilities in the alleged Gap Area and reasons why a tower at the proposed location could not be any shorter. The administrative record contains no evidence that the Applicant considered any alternative sites, other than a perfunctory statement that it could not reach terms with Fidelity. In the Town Council’s opinion, the only unique circumstance about this location appears to be that the Applicant already obtained a lease from the Town, and that further investigation into alternative sites could be economically disadvantageous. Given that the Applicant failed to show that no other alternative site identified in the administrative record—either alone, in combination with one or more alternative sites or in combination with a lower tower at the proposed location— could achieve the Applicant’s technical objectives, the Town Council finds that no unique conditions support the significant deviations from the applicable zone height limit, rear setback requirement and/or the viewshed and community aesthetic principles under the Comprehensive Plan. Town Council Resolution No. 25-12 Page 24 / 24 3.Severability. If a court of competent jurisdiction holds any section, subsection, paragraph, sentence, clause or phrase in this Resolution unconstitutional, preempted or otherwise invalid, the invalid section, subsection, paragraph, sentence, clause or phrase shall be severed from this Resolution and shall not affect the validity of the remaining section, subsection, paragraph, sentence, clause or phrase in this Resolution. The Town Council hereby declares that it would have adopted each section, subsection, paragraph, sentence, clause or phrase in this Resolution even if any one or more sections, subsections, paragraphs, sentences, clauses or phrases in this Resolution might be or are declared unconstitutional, preempted or otherwise invalid by a court of competent jurisdiction. 4.Final Action; No Appeals. This Resolution represents the final action by the Town on the Application. No further administrative appeals are available to the Applicant. 5.Publication. The Town Secretary shall publish the fully executed Resolution in the manner required by law. 6.Effective Date. This Resolution will be effective immediately upon its full execution. PASSED, APPROVED and ADOPTED on March 24th. 2025, by the following vote: AYES: Mayor Pro Tem Reeves, Council Members Yackira, Gautier and Asselta NOES: None. ABSTAIN: None. ABSENT: Council Member White ________________________________ Mayor Kim Greaves Town of Westlake, Texas APPROVED AS TO FORM: ________________________________ Stan Lowry, Town Attorney Town of Westlake, Texas ATTEST: ________________________________ Dianna Buchanan, Town Secretary Town of Westlake, Texas