09 May 2018

Application for Replacement of a US Cellular Communications Tower

Comments submitted to Cherry County Planning and Zoning Board by James E. Ducey; May 1, 2018. A copy of these comments was provided to each member of the board.

A public hearing cannot be held on this Conditional Use Permit 002/18 request to replace a communications tower north of Valentine because the application is not complete. There was not a suitable public notice as a single sentence within an ongoing paragraph on the public notice of the local newspaper is not sufficient, especially in comparison to the more prominent public notice issued for a public hearing at the county commissioner meeting.

The application associated with CUP 002/18 should not even be considered, and especially not approved, because it is deplorably inadequate. It does not include many items as required by Cherry County Zoning regulations, dating to 2008. The following refer to a specific item(s) as required for any CUP proposed and as applied for by the CUP application for this site.

This is "exhibit two" which was submitted to show the locations of residential dwellings. This aerial photo depicts a locality and does not indicate a single dwelling.

Application item Number 4, item g: “The locations of residential dwellings and other non-agricultural land uses within four miles of the property to be affected by the proposed Conditional Use.”

The application refers to Diagram 2. This large-scale aerial photograph diagram does not have any of the detail necessary to determine any of the many residences within four miles of the site that will be affected by the proposed conditional use. Also, obviously, any other land uses are not indicated, including wildlife, park areas and natural spaces owned by the citizens of Valentine.

Also missing from the CUP applicant and application material provided to the zoning administrator are these items as specifically referred to in the Cherry County zoning regulations.

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.

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 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 by 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?

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.

“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 (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.

Also, by-the-way, the filing fee for communication tower applications should be increased to $250 to pay expenses for publishing suitable public notices – and which should not be a sentence in an ongoing meeting notice - and to offset costs for the time required by the zoning administrator to review applications and to make sure they are filed in accordance with all applicable zoning regulations. County residents should not be required to pay any sort of costs for a tower being placed by a for-profit company such as US Cellular, as indicative by this application.

Though most of these items were not considered by the members of the Planning and Zoning Board, the request for the CUP was approved by an unanimous vote.

It is a common point-of-view that the members basically ignored the zoning regulations. What is the purpose of regulations if they are ignored by a board responsible for making sure that any CUP application meets the requirements?

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