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Town removes cell tower height controls

STEVE REID
Editor & Publisher
sreid@lbknews.com

The Longboat Key Town Commission approved last Monday an amendment to its Comprehensive Plan that will forever change how cell towers and telecommunications are regulated by the town.

In a discussion that lasted nearly two hours, the Commission voted unanimously to remove any and all height restrictions of cell towers from the Town Comprehensive Plan.

The Commission also deleted the language that staff and the Planning and Zoning Board had suggested that would create a hierarchy of approval for telecommunications with cell towers being the least desired option available to remedy any perceived cellular reception problem.

The Commission decided not to put the restrictive language in the Comprehensive Plan, but instead decided it will adopt land-use regulations down the road that will decide if a cell tower can be built and what height limitations, if any, it seeks to impose.

One commissioner suggested there may even be a need for a cell tower on the south end of the Key to remedy problems indicated by Commissioner Lynn Larson and problems her neighbors have with reception.

Longboat Key has historically regulated cell towers through two ways: one, by height in the zoning code and districts and the other method was through collapse zones and setbacks. In other words it was all but impossible to erect a cell tower of the height tower builder desired.

And while there are no cell tower applications before the town and while no telecommunication provider has ever sought to build a tower on Longboat Key, the Commission is undertaking this change to the regulations prior to establishing the level of the reception problem or what regulations it may eventually adopt.

Planning and Zoning Director Robin Meyer opened the meeting by saying, “This is a fairly minor change to the Comprehensive Plan.”

Meyer explained it removes the height limitations from the Comp Plan and puts them in the land development regulations.

But that immediately spurred a problem. Commissioner Pat Zunz asked how the Commission could agree to the Comp Plan changes without having determined what the maximum height would be and having not created any ordinance to define that height.

Next, Commissioner Jack Duncan established that in his research he found out that only telecommunication providers could sue the town under a violation of telecommunication act, not cell tower erectors. In other words, Tower builder Jimmy Etredis of Alpha and Omega Communication — unless he’s bound with a communication provider to build the tower — has no legal standing to sue the town for anything under the Federal Telecommunication Act.

Town Attorney Maggie Mooney-Portale agreed and said the Federal Telecommunications Act only applies to carriers, not builders of towers.

Mayor Jim Brown said it was clear that Longboat Key does not ban cellular providers. He said we already have five or six of providers on Longboat.

Mooney said the way the law reads is we are not to ban anything explicitly or implicitly. “But you can regulate very clearly the aesthetic values of the community including height,” she added.

Brown asked if the Town can say, “We are happy to have any telecommunications except a tower. Is that a ban? I think not.”

Commissioner Phill Younger said Mayor Brown had a very valuable point and he said he was concerned about the vagueness of the answers from Maggie Mooney-Portale about whether the town could regulate to the extent of saying it would not allow a tower.

“Let’s cut to the chase,” said Younger, “Everyone wants better service. They say you can’t have a ban, but it does not say you cannot put anything in place. We could put a height restriction. Is 40 feet a ban? Is 100 feet a ban? Do you have an answer to that?” Younger asked the attorney.

Younger was clearly frustrated and said there are communities across the country with height limitations of 40 and 50 feet and their rules have been upheld.

“Frankly we not getting good answers here,” said Younger.

Zunz said she did not see how we can do anything to approve these Comprehensive Plan changes without the land development regulations that would then tell the community as well as applicants what the regulations will be.

Brown said in his mind he did not see any reason to delay the comprehensive plan amendments because they could develop the land development regulations in the meantime and incorporate those later.

Younger suggested that Obamacare was similar in that we passed the law before we saw what was in it.

Duncan said he did have a problem moving the amendments to the state and the lack of clarity surrounding the issue. He said at the last meeting the Commission gave direction for the town manager to talk to providers on how to remedy telecommunication issues and see if they would react to that. Duncan said he would like to discuss that with the town manager and follow through on that initiative before moving forward. Duncan continued in saying that sending the Comprehensive Plan amendments to the state was “putting the cart ahead of the horse.”

Town Manager Dave Bullock said that if the State were to approve the Comp Plan changes, the town would be bound to create a policy and write a code to support the Comp Plan.

Then, after the above discussion, the floor was open for resident comments.

Former Mayor Jeremy Whatmough made several points. First he asked why change the existing comprehensive plan.

Whatmough said, “Reflect on what the current comprehensive plan has accomplished for Longboat Key. Longboat Key is enjoying a Renaissance. It is doing very well.”

Next, Whatmough asked how the town could approve anything when the Commission did not know what they are approving later in regulations. He said the town should certainly know how it wants to regulate cell towers before it makes comprehension plan changes and sends them to Tallahassee. He then said the residents and people are away and it should only be considered in the fall when everyone is back.

Then Mayor Brown said, “We’re changing this part of the comprehensive plan because he was told we are not in compliance with federal law.” Then Jack Duncan said that Town Attorney Kelly Fernandez made some assumptions in October 2012 relative to arguments by a tower applicant. Duncan said he believed the assumptions she made are incorrect.

Then Gene Jaleski, resident and former commissioner, got to the podium and told the commission, “You have a policy in place. Why don’t we get off of this? We do not have an obligation to provide optimal profit margins to tower providers under federal law. Let’s stop worrying about the height of towers and start worrying about communications. We’ve not gone 1 inch in the year on this issue,” said Jaleski.

One resident, June McCrory of Sleeping Lagoon, said she was an engineer and she urged the Commission to investigate the many opportunities that would not interfere with height restrictions or neighborhoods. She implored them to become knowledgeable before going ahead with the language to the state.

Mayor Brown shot back, “It’s not like the town has its head in the sand. We have invested hundreds of hours. Gene Jaleski has brought us whatever system of the week. I don’t know how we can do more research than we have done.”

Commissioner Terry Gans said he understood people do not want a cell tower, but tactically to try to delay everything, …I tend not to be in sympathy with that.”

Attorney Mike Furen rose to the podium and corrected what he said was a misstatement by Robin Meyer. Furen said, “This is not a minor policy change. It is the first time the comp plan on Longboat Key will recognize the cell tower as a solution to a real or perceived problem. We have one of the most significant compliment amendments this town is facing a long time. …Once something is sent to the state and it is approved, it is not going to change when it comes back. That’s not going to happen,” said Furen.

The attorneys asked, as did residents, that the Town wait and consider the issue in October or in the fall or during season when most of the residents and property owners are in on Longboat Key.

To that notion Brown said, “What time of year do you think we ought to do it? In November? People will complain in November. You think nobody thought about cell towers before we crafted this language?”

Gans said that it was intellectually dishonest to ask to wait until the season to discuss issues. Gans spoke of the budget and how that is adopted in the summer and he said it is one of the most important aspects of the town commission. Gans said,” The calendar should not be used as another weapon in the arsenal.”

Duncan then asked rhetorically: “At the end of the day, do you want a cell tower in your back yard? I don’t and I don’t believe the average person wants it to happen. I think we have to come up with a better solution than a cell tower.

Commissioner Lynn Larson said that she has heard and has experienced problems on the south end of the Key in Country Club Shores with cell coverage.

“I cleaned up the blood on the floor of the neighbor who has fallen and cannot make contact,” said Larson

Then Larson asked, “What happens if she is in the car and she is pushing that button and nobody comes?”

Duncan then asked Larson if she was advocating for a tower on the south of the island as well as the North Larson replied, “I’m for better service.”

Brown made a motion to remove the height limitation of the cell tower from the comp plan but also to remove all the language controlling and regulating the hierarchy from the comp plan as well. The Commission ended up amending the Comp Plan with a statement that says the town essentially supports cellular telecommunications. The Commission also removed the height restrictions.

Under Brown’s amendment, there will be no height limitation whatsoever to cell towers in the Comprehensive Plan or any zoning district. In fact they would be exempt from height limitations and the language that would be used to evaluate has not been crafted yet; the commission plans on developing it later.

Brown’s motion simply states in the comprehensive plan that the town supports telecommunications. Any controlling regulations will be developed this fall and those regulations will control the placement and size and height of cell towers or not depending on what the commission wants to do.

The most significant difference is if the town had left the hierarchy language with cell towers being the least preferred solution, all codes that would have to be written later would be forced to conform with that comprehensive plan language. By not putting controlling language in the comprehensive plan, the town by majority vote of any commission can adopt any land development regulations it wishes and approve any cell tower height it chooses with four votes.

With the Comprehensive Plan amendments approved unanimously by the Commission, the amended language suggested by Brown will go to the State for comments and come back to the Town for formal approval. In the fall, the town will work out its land development regulations that will further clarify the issue.

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