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Jackson commissioners hold off on cell tower vote following public comment

jacksonThough commissioners were scheduled to vote on whether to adopt a new set of rules for cell towers in the county last week, they opted to put the final decision off till August after a public hearing drew a variety of specific critiques of the document.

“For us to have moved forward that very night, which we could have, I think would have been very disrespectful to the process and to the people that spoke,” said Commission Chairman Brian McMahan. “It’s worth our looking into and evaluating those comments.”

The four people who gave verbal comment to commissioners weren’t new to dealing with tower construction issues in the county. Rick Barrs, a property owner in Cashiers who had vehemently opposed a now-withdrawn application earlier this summer to put a cell tower on land near his property line, spoke, as did his wife Donna and lawyer in the situation, Fred Jones of Franklin. 

Craig Pendergrast, an Atlanta attorney who had argued against a proposed tower next to the property line of his land in Whiteside Cove near Cashiers — the application was eventually withdrawn — also spoke. The county sought written comment from Henry Campen, attorney for Crown Castle tower company who worked on the application for a tower near Barrs’ property, and from Larry Perry, the consultant they’d engaged to weigh in on the application. 

“Really the only comments we’ve had has basically been from a couple of people up in Cashiers,” Commissioner Boyce Dietz commented. “It’s kind of amazing you don’t hear from more.”

 

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Specific advice 

Those who spoke, though, had more to say than a simple vote of displeasure or support. 

For instance, Rick Barrs took issue with a section of the document that stipulates that a tower site be “the least visually intrusive within the subject property and to surrounding properties.”

That’s a good rule, he said. The problem is that “surrounding properties” is not defined. 

“It could allow the owner of a large tract to subdivide that into smaller parcels to locate a new tower,” he said. Perhaps, Barrs suggested, the ordinance could be revised to include a minimum distance rather than just a reference to surrounding properties. 

Donna Barrs, meanwhile, disapproved of a portion of the ordinance that said towers that include some kind of camouflage in their design should get a bonus height. 

“That’s a standard that we should ask for in the year 2015,” she said. 

In his written comments, Perry said that he believed the 100- to 180-foot maximum tower height was too short. Higher towers mean that more providers can fit antennae on them, which means that fewer towers are ultimately necessary. Increasing the tower height is a good idea if the goal is to reduce visual clutter, he told the planning board last month. 

That’s not quite true, Pendergrast said, because while service providers say they need 20 feet between arrays, they really require only about 6 feet, so the need for a higher tower is overblown. 

“I thought there was a lot of good, valid questions raised, some potentially worthy changes to be made based on the comments,” McMahan said. 

 

Understanding the ordinance

Some of the comments, though, were more an invitation for education than fodder for revision.

For example, Rick Barrs took issue with the approval process for towers. 

“The amended ordinance as written would allow towers of up to 120 feet in height to be constructed without notice to the public, no notice to adjacent landowners, no camouflage, no co-location,” he said. Further, Barrs said, towers less than 120 feet tall could be approved by a single code enforcement officer, and those taller than 120 feet could be approved by the planning board with no public hearing required. 

That sounds pretty bad, but it’s not actually what the ordinance says, according to John Jeleniewski, the county’s code compliance officer. 

“That’s broadband towers,” Jeleniewski said of the section of the ordinance Barrs was pulling from. “That was specific not to telecommunications. That was specific to wireless.”

Broadband towers — towers that provide Internet service but do not serve cell phones — are “more like antennas” than actual towers, Jeleniewski said. They’re a lot slimmer and less obtrusive and therefore would not automatically trigger a public hearing. 

Cell towers, on the other hand, would have to undergo an entirely different approval process. Any new cell tower would require a conditional use permit, and to get such a permit the applicant would have to go before the county commissioners. A public hearing would be required, as well as a quasi-judicial hearing, a type of hearing that resembles a court proceeding and involves parties giving evidence under oath. A recent revision to the ordinance has the county commissioners sitting as the quasi-judicial body rather than the planning board, as originally written. 

Jeleniewski also deflected a concern from Pendergrast that the rules should be written more strongly to ensure that companies actually send their representatives to the site rather than preparing the application from afar.  

“Nobody’s going to be off-site, out of the county and submit a complete packet,” Jeleniewski said. “We require site plans and site visits and all those things that go along with the application. It’s not really a concern because there’s enough checks and balances worked into that process that an application is not going to get approved at a quasi-judicial level unless all those things are met.”

Meanwhile, Jones criticized the ordinance as having had its “heart and soul” “basically excised” through inserting a section outlining Jackson County’s desire for where cell towers should go as a recommendation rather than a requirement. 

“I read that section now as sort of a standalone ‘we hope you’ll do this,’ but there’s not a meaningful way for that to make its way into the application,” Jones said. 

That’s true, Jeleniewski granted. The list prioritizing where cell towers “should” go is not an enforceable dictate but rather a recommendation. But according to Jeleniewski, that’s the way it has to be. 

“If you put some resolution in play and say you can’t do it at any of these locations, then there’s no place to put a tower,” he said. “Going down that list and coming up with the best possible scenario for all involved is what’s intended for the spirit of the ordinance.”

“The reason why it’s recommended is I don’t know if you could enforce it,” he continued. If enforcing it as required meant that no sites could meet all the criteria, it’s possible that litigation could result. 

Commissioners were grateful for all the input, though, resolving to take time to talk more with those interested in giving feedback and possibly make some changes to the proposed ordinance before voting, likely at their Aug. 6 meeting. 

“We’ll be advised and we’ll make a decision the best that we can,” said Commissioner Mark Jones.

 

 

Let your voice be heard

If you’d like to weigh in on the cell tower ordinance, read through the version online at www.jacksonnc.org/PDF/agenda/ july-09/20150709-item3.pdf. Contact information for commissioners is available at www.jacksonnc.org/county-commisioners.html. Commissioners will likely take a final vote at their Aug. 6 meeting, so the sooner comments are received the more impact they will have. 

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