31 May 2018

Application for CUP to Replace a US Cellular Communications Tower near Valentine

Comments submitted at a public hearing held by the Cherry County Commissioners in response to an application for a Conditional Use Permit to replace a US Cellular wireless tower north of Valentine; May 29, 2018. Copies of my prepared comments were provided to each commissioner, the county clerk and the newly elected commissioner who will take office in January. Some friends were also shown the text before and after its presentation.


Applicant Comments

Shawn Kellis, the representative for the US Cellular applicant, once again started the public hearing. He started his comments by at least referring to the street address of the project, which is apparently on Jackson Road. The need for the replacement tower was the acquisition of Western Wireless, so local service was now nearly entirely “maxed out.” Kellis indicated that the use of a monopole tower would reduce the tower footprint to 75 by 100 feet, in comparison to the five acres needed by the current tower with its guy-wires. The applicant representative indicated that the lesser footprint for the tower would allow land to be returned to a grassland condition, though no actual details were given. It was not indicated if the overall area included the tower equipment building and fencing.

Commissioner Van Winkle stressed the necessity to colocate county emergency equipment, as had been required for all recent wireless tower projects. Details for this were no apparent in the application and further details had to be found so that a statement of understanding would be included in any CUP approval.

The construction of a new tower and removal of the old tower would be one continuous process, Kellis said, with weather a obvious variable. No timeline details were given in the CUP application.

Ducey Comments

During the first of the morning, the zoning administrator was asked in any supplemental information had been provided for this CUP application. Her response was no. The actual words spoken adhere to these primary points but at times additional verbiage was used to emphasize a point.

A public hearing held [May 1] by the Planning Board, they failed to suitably several items listed under section 6.12 in the zoning regulations. Their failure is indicative that their approval was based on incorrect action. The zoning board should be held accountable for this failure and all of them should be removed from the board except for Michael MacLeod.

It is the responsibility of county commissioners to appoint members to the Planning and Zoning Board so it is their responsibility to ensure that eight of the members [should] be removed immediately and others appointed that will be accountable to the residents of Cherry county and [deal with] regulations as they have volunteered to do.

Public Notice

There are obvious problems with the public notice issued for CUP 002/18. They included:

1) This CUP application is not authorized under anything, it is regulated by; only the county commissioners can authorize anything.
2) The CUP application is regulated by Section 10 as well as section 612 of the zoning regulations, though only section 10 was mentioned.
3) This is not a tower update, it is a tower replacement. An update refers to changes to a current tower and the way the public notice reads, it seemingly states that a current tower will be modified to a 280’ self-supporting tower. This is not the case, as a new tower will be constructed.
4) The location of the proposed tower was not indicated by a legal description [while at least the applicant did this time provide an address necessary for emergency services.]

Section 612 Radio, Television and Wireless Communication Towers

"Missing from the CUP applicant and material provided to the zoning administrator are these items as specifically referred to in the Cherry County zoning regulations. None of this material has been available for public review, neither.

Section 612.01 Intent

“Telecommunication facilities, towers and antennas in the County, to protect residential areas and land uses from potential adverse impact due to the installation of towers and antennas through special design, siting, and camouflaging, to promote and encourage shared use/collocation of towers and other antenna support structures rather than the construction of additional single use towers, to avoid potential damage to property caused by towers, telecommunications facilities and antennas. … Also to ensure such structures are soundly and carefully designed, constructed, modified, maintained, repaired and removed when no longer used or are determined to be structurally unsound and to ensure that towers and antennas are compatible with surrounding land uses.”

"There is no mention in the CUP application on how camouflaging will be used to screen the tower property tract, notably landscaping such as planting trees to mask the fence, building and base of the tower. [Commissioner Storer had said previously in association with a wireless tower placement near Arabia that the commissioners could not tell the applicant what to do, but this clause indicates they can.]

"How has the applicant indicated that a cellular tower is compatible with “surrounding land uses” which includes, residential acreages and agricultural-related uses? There is also Government Canyon, which is a [nearby] state of Nebraska wildlife management area established and maintained for many years for a wide variety of outdoor recreation pursuits. The proposed tower is an industrial use and does not conform to any of these land uses and their associated values.

Section 612.03

“2. No proposed tower shall be located within five miles of any existing tower, without approval of the Cherry county Board of Commissioners.”

How can this criteria be suitably evaluated if the necessary information is not provided with the applicant’s request?

“4. ... Upon completion of construction of a tower and prior to the commencement of use, an engineer’s certification that the tower is structurally sound and in conformance with all of the aforementioned applicable regulatory standards shall be filed with the Zoning Administrator.”

There was no item found in the application on how the applicant will comply with this regulation, nor the timeframe when it will be completed? [The applicant representative indiated that engineering drawings fulfilled this requirement.]

Section 612.04

“1. ... Applicants shall include the owner of the tract of land and all persons having an ownership interest in the proposed tower. The application shall be executed by all applicants.”

These details were not found in the applicant’s request packet. And note that the zoning regulations states “all persons” having an ownership interest, not just the company business name. “All persons” indicates everyone that has any ownership stake in the US Cellular. This would perhaps include users of the companies’ cellular service? This application was not “executed” by all applicants, but instead by an “agent” company for the owner of the proposed tower. [Not a single owner associated with US Cellular was indicated by the project application.]

“2. The legal description and address of the tract of land on which the tower is to be located.”

There is no apparent proper road address included with the application that is a requirement for emergency response crews. Also, there is only a partial, and insufficient legal description; indicating the north one-half of a section is not detailed enough for a facility as small as the communications tower tract which is just relatively a short bunch of feet in extent. The quarter section should be specifically indicated, and even more details as appropriate.

“3. An affidavit attesting to the fact that the applicant has made diligent but unsuccessful effort to obtain permission to install or collocate the applicant’s telecommunication facilities on a tower or useable antenna support or written technical evidence from an engineer that the applicant’s telecommunications facilities cannot be installed or collocated on another tower or useable antenna support structure.”

This affidavit was not provided in the material provided to the zoning office, as it was not found among the application material available for review at the zoning administrator office on the morning of 26 April. Any cost to conduct this evaluation and prepare this affidavit should be paid for by the CUP applicant, and should be done by an independent engineer, not a company employee, nor a hired agent submitting the application, and not an employee of a subsidiary company of the applicant. This affidavit needs to represent an independent and non-biased perspective.

“5. Designation of an appropriate space for Cherry County’s operational and emergency services communication equipment to be provided at no cost to the County by the applicant.”

How has the applicant indicated that this requirement will be met?

Section 612.06

“4. Towers must meet the following minimum separation requirements from other towers:

“A. Monopole tower structures shall be separated from all other towers, whether monopole, self-supporting lattice, or guyed by a minimum of 750 feet.

“B. Self-supporting lattice or guyed towers shall be separated from all other self-supporting lattice or guyed towers by a minimum of 1,500 feet.”

Building a new monopole tower within less than 100 feet of another tower does not conform to these zoning regulations. Any excuse that one tower will replace another means this regulation will temporarily not be in compliance [i.e., when will the old tower be removed?]. The regulations are obvious ... remove the first tower and then build the new tower to comply with this zoning requirement.

The applicant reconsidered thie item and provided further details on when the previous tower would be removed.”

No one else spoke in opposition to the tower. No one spoke in favor of the tower.

Further Discussion

Commissioner Jim Van Winkle expressed his ongoing intent to have colocation of services on common towers and was important to him and for which he has had no success.

My response, despite an attempt by the chair to say the public hearing was closed so further comments could not be spoken, my voice continued: Where is the affidavit in the CUP application that indicates this was considered? No written details were given by any public official.

The former interim zoning administrator, Gary Weaver, then said that adjacent landowners were in favor of the tower, based upon zoning meeting testimony. My instant response was that there were no adjacent landowners that spoke in favor of the tower at that meeting. Weaver’s response was that no one said anything in opposition.

It was warm in the meeting room, with a single open window that provided a slight wind and an open door into the hallway where county court participants were actively talking, and loudly heard.

Due to time constraints, the commissioners seemed to agree to a time limit of 60 days for the old tower to be removed, once construction of the new tower was complete. Since documents had to be revised, there was a delay in the final vote.

It was obvious that approval would occur. The resolution for approval was not only already completed and ready for the commissioner’s signature, but the applicants representative was heard saying that the new tower had already been ordered.

The transition of the towers was expected to be finished by the end of this summer.

"It was the consensus of the Board to table formal action on the CUP application to the June 12, 2018 meeting," according to the meeting minutes.