In the midst of a heated battle regarding the construction of the P25 public safety tower at Kinnan Park, commissioners gave instructions that conflicted with some of their other policies — and the law.
John Barnott, director of building and development services, came before the Board of County Commissioners during a work session Tuesday to ask for clarification. What he got was a refusal to move forward on a number of changes to how the county approves communication towers.
Commissioners wanted to make sure something like the Kinnan Park incident never happens again, but some of their recommendations wouldn’t be legal, according to legal advice from county attorneys.
In August, Commissioner Carol Whitmore made a motion to handle all communication towers as if they were cellular phone towers so that they could come before the board for a public hearing, but that could be a legal issue. Assistant county attorney Bill Clague explained that procedural shift wouldn’t hold up in court because there are federal guidelines concerning how counties approve commercial cell towers.
Clague said the county administrator’s office made the right call when it approved the P25 tower because the land belongs to the county and staff are legally allowed to make that determination.
“We didn’t hold public hearing to make a decision on Fort Hamer Bridge or the expansion of U.S. 301. It’s up to you to handle community outreach, but it’s your land and you’re funding the project,” said Clague.
Commissioner Misty Servia, who represents the district where county staff administratively approved a 180-foot tower with little notification for residents, argued that residents should have a say before the county makes a decision.
The issue of the public safety tower continues to frustrate county commissioners, but Clague suggested that the problem was project management, not a question of the county’s land use code.
“If you plug it into the code, you’re going to get into the issues of people having to be sworn, having to be qualified, they have to be experts. We do that for cell towers because they’re a private industry coming before us and we have to,” Clague said. “We don’t have to do that for your projects. You can have your public hearing and have much more discretion to decide whether to build it.”
Commissioner Betsy Benac’s concern was that public safety towers don’t have to meet the standards of other cell towers. She hoped the county could force those towers to comply with the rules of cell towers for safety reasons, like setback and fallback radius.
“If you do that, you’re going to render all your existing P25 towers that are not allowed in the zoning district into nonconforming uses,” Clague responded. “You’re talking about things that have consequences, so I would caution you to think it through carefully because you’re talking about millions of dollars in public works utilities.”
Deputy County Administrator Cheri Coryea also said a legal change might not be the right solution. She told commissioners that her office learned from the incident and has made relevant adjustments.
“We’ve started a process of neighborhood meetings where at all possible. We made that move based on what this board has brought forward and some of the things we learned this particular project,” said Coryea.
The county attorney’s office said it will provide a legal clarification of the motions made calling for a change to how towers are handled in the future.
Commissioners also dashed plans to look at hosting a commercial cell tower on county-owned land they purchased in September and implement a rule stating that towers could not be within a certain proximity of a school because of federal guidelines.