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Wednesday, 14 September 2016 14:28

Jackson board tweaks cell tower ordinance

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After surviving the first application process under the new wireless communication rules, Jackson County commissioners directed the planning board to look for ways to improve the ordinance.

The planning board finalized the latest version of the ordinance last August in an effort to more clearly spell out the process and the standards for applicants wanting to construct a new cell phone or wireless internet tower, but apparently the ordinance wasn’t perfect. 

Though commissioners did approve Crown Castle’s application in January to construct a 120-foot monopole tower in Cashiers, the process was a daunting one — mostly trying to determine if the tower would “substantially” injure the adjacent property value.

Planning Director Michael Poston, who was hired in December after the revised ordinance was passed, recently presented the planning board with a list of suggested changes that could perhaps make the application process more streamlined. 

“In August we started talking about some of the issues staff found in working through the new ordinance and applying it during the quasi-judicial hearing,” Poston said. “We’re trying to improve the process and not lose the meaning of why we have those rules and regulations.”

Poston suggested exempting state and local emergency management towers from the approval process. Since the purpose of emergency communication equipment is to protect the welfare of the community, Poston said, the ordinance’s standards might be too restricting.

“Serving the greater good may not jive with the ordinance,” he said. 

Another suggestion was to allow for equipment on county and state properties to be exempt from the approval process and instead only be subject to administrative review. 

The planning board is also looking at the possibility of allowing towers exclusively used for wireless broadband services to be exempt from the approval process if the structure doesn’t exceed 120 feet in height and does not create the need for a new access road to the property. 

With Jackson County’s need for better broadband connectivity, Poston said the application process for wireless internet towers shouldn’t be as stringent as they are for cell phone towers. He said it was unrealistic to think broadband providers would be willing to invest millions of dollars in new infrastructure that could potentially serve only a handful of customers in a rural parts of Jackson County. However, wireless towers can reach a broader audience by using less invasive structures.  

“Wireless internet is one way to mitigate the last mile problem,” he said. “But it’s not practical at this time to expect fiber to run up every holler in Jackson County.”

Jackson County Economic Development Director Rich Price brought up the idea of exempting wireless towers to commissioners back in June. 

Commission Chairman Brian McMahan was hesitant to give wireless towers a blanket exemption from any public hearing process, but he seemed more agreeable to place height restrictions on the exemption. 

One area of the process that became cumbersome when commissioners tried to apply the new ordinance to the first cell tower application was language regarding a recommended list of locations for the infrastructure. 

The ordinance recommends applicants consider placing their equipment on an existing tower or structure or in an area already developed for business use before exploring the construction of a new tower in a residential or rural area of the county. 

The ordinance goes on to say applicants must provide a detailed explanation in the application if the preferred options are not selected. The proposed new ordinance language would clarify that applicants must provide justification and documentation explaining why one of the preferred locations wouldn’t work. 

The planning board is also looking at reducing the setback requirements for wireless structures. The current setback is the height of the tower plus 10 percent to ensure safety in case the structure falls. Poston said he’s since learned that towers don’t fall over — they collapse on themselves — meaning the height plus 10 percent rule is overkill. The suggested change is to rely on the applicant’s engineer to determine what the “fall zone” is for the tower in question and add 10 percent to that number as a buffer.  

“If it’s the height of the tower that’s fine, but it gives applicants the chance to work with their engineer on that number,” Poston said. 

When an applicant requires a special-use permit for its structure, a quasi-judicial hearing before the commissioners is required. Under the current ordinance, applicants have the burden of proving that their structure will not diminish the value of adjacent properties. 

Poston said he reached out to the School of Government in Chapel Hill on this issue because such a high standard could prove nearly impossible for applicants. 

“The School of Government said it’s a high standard for applicants to meet — how do you prove you’re not substantially diminishing the value of the adjacent property?” Poston said. “It could be applied in a way that no application was ever approved.”

County Attorney Heather Baker said a possible solution is to switch the burden of proof from the applicant to the adjacent property owner or owners. With the right kind of appraisal, she said, a neighbor should be able to show whether the proposed structure would negatively impact property values. If the burden remains on the applicant, Baker said she feared any of the county’s decisions on cell tower applications could be legally challenged. 

Commissioner Vicki Greene, who was present at the planning board meeting, said she personally liked the idea of switching the burden of proof to the other side.  

Planning board member Steve Johannessen questioned if that was the right thing to do. 

“They (neighbors) have nothing to do with the tower then have to start spending money,” he said. “I shouldn’t have to spend money to justify me not liking that next to me.”

Poston said opposing neighbors would want to get their own appraisal anyway to refute an applicant’s appraisal if it found the tower wouldn’t impact other properties. 

The last two recommended changes include removing a company’s ability to resubmit the same or substantially similar application within a year of denial of the original application and changing the appeals process. The current ordinance allows the planning board to hear appeals, but Poston suggested allowing the board of adjustment to hear appeals. 

“This amendment will allow the planning board to focus on legislative based policy issues and the board of adjustment to focus on quasi-judicial cases,” he said. 

No decision was made on the proposed amendments. The planning board will discuss the recommendations at its next meeting. 

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