Kreines
& Kreines, Inc. Helps a Citizen in Kentucky, the Planning Commission
Benefits As Well
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Figure 1: Prospective view from our client's backyard
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Wireless-wise, things are different in Kentucky. Until
2002, all personal wireless service facility application approvals were made
by the state Public Service Commission. Citizens would have to go hundreds
of miles to attend a public hearing.
That all changed with a state law that mandates the
procedure (but very little substance) of how personal wireless service
facilities are reviewed at the local level. Kentucky Revised Statutes
Sections 100.985 to 100.987 spell out how local planning commissions can
approve or deny something called a “cellular antenna tower.” At the risk of
sounding like a broken record, Kreines & Kreines, Inc. reminds its readers:
they aren’t “towers.” They aren’t just for “antennas.” And “cellular” is
only one personal wireless service; there is PCS and now there is AWS
(Advance Wireless Services). A personal wireless service facility has five
components: mount, equipment shelter or building, antennas, cables and
compound. The law can’t just deal with one part of a personal wireless
service facility, such as a “tower.” The toxics and flammables, for
example, are in the shelters or buildings.
Not only was this amendment to the Kentucky Revised
Statutes poorly drafted, it appears to Kreines & Kreines, Inc. to be the
handiwork of the wireless industry with the following requirements:
All information contained in the application and any
updates, except for any map or other information that specifically
identifies the proposed location of the cellular antenna tower then being
reviewed, shall be deemed confidential and proprietary …
The local planning commission shall deny any public
request for the inspection of this information …
Any person violating this subsection shall be guilty of
official misconduct in the second degree as provided under KRS 522.030.
In other words, the public can’t access the substantial
evidence for a mandated public hearing.
Fourteen years ago, Kreines & Kreines, Inc.’s client
and his family built their dream home (pool in the rear yard of a two-acre
lot). In December 2007, T-Mobile submitted an application for a guyed
tower, with our client’s rear yard 200 feet from the “specifically
identified” proposed location of the “cellular antenna tower.” While the
central shaft of the 270-foot guyed tower was shown 200 feet away, no one
would show our client that a guy anchor was proposed immediately adjacent to
the homeowner’s lot line. If the guyed tower were built, our client would
walk out his back door and be looking at Figure 1.
Kreines & Kreines, Inc. reviewed the three pieces of
information given to Kreines & Kreines, Inc.’s client by the Planning
Commission that included:
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One-page application.
·
Staff report.
·
Site survey.
It was clear from the staff report that the very able
staff felt very constrained by the pro-industry state law to undertake a
detailed analysis.
Kreines & Kreines, Inc. undertook the analysis and
found:
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The application appears to have been revised after it was
filed with the Planning Commission.
·
The Planning Commission was considering two different versions
of the same application with two different versions of the same document and
Kreines & Kreines, Inc. recommended that the project should be denied.
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Figure 2:
Comparison of Comprehensive Plan to Kreines & Kreines, Inc. Review |
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Comprehensive Plan |
Kreines & Kreines,
Inc. review |
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Maintain an adequate supply of developable land in the Urban Service
Area. |
Why give up nine
acres of Urban Service Area for a guyed tower site? |
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Maintain adequate supply of land for affordable housing. |
Why give up land
planned for “Urban Residential” to a land-extensive incompatible
development? |
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Develop policies and guidelines for annexing needed residential land. |
Do the policies and
guidelines allow an incompatible use to impact all of the future
residential land surrounding it? |
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Establish community entryways to create a “powerful impression of the
city.” |
The 270-foot guyed
tower would be the first thing visitors would see upon entering the
city on a U.S. highway. |
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Future Land Use Map. |
The project site and
everything around it is designated “Urban Residential.” |
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It is a “fundamental principle” to “produce a positive impact on …
quality of life … and a proper balance between property rights and
the needs of the public and community.” |
There is an existing
subdivision adjacent to the project site. Other “Urban Residential”
is planned. Whose property rights are balanced with what “needs of
the public and the community”? |
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The mission of Fire and Rescue is to provide fire suppression, first
responder, EMS, prevention education, technical rescue and to
mitigate the hazardous consequences of natural and manmade
disasters. |
How would Fire and
Rescue provide “fire suppression” to a structure 270 feet AGL? How
would “first responder, EMS, prevention education, technical
education, technical rescue” and the mitigation of “hazardous
consequences of natural and manmade disaster” be provided for in an
unmanned facility 600 feet down a 12-foot wide gravel road when
there is no place to turn fire and rescue equipment around? |
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The Planning Commission did not give the homeowner all
specific location points because the anchor points and equipment buildings
(four in all) were not mapped.
·
The Planning Commission should require that a draft
Environmental Assessment (see Gulf Coast article) be submitted and
should consider that document before making a decision on the project.
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The alternative sites considered by the application as
alternatives were all within the Urban Service Area, which is to be annexed
for urban development and inappropriate for a guyed tower.
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The proposed project is in conflict with the Comprehensive
Plan. If the Planning Commission approves the project, they should also
amend the Comprehensive Plan to eliminate the incompability.
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The Planning Commission could not approve the project because
of the presence of sinkholes on the project site.
·
A project of such extreme height and construction demands
should not be approved with a 600-foot long dead-end sub-standard road
(12-foot gravel travelway).
·
Guyed towers can fall down, shower ice and debris on people
and property below, shake in a seismic event (the area is in the high risk
zone of the New Madrid earthquake fault), have been known to burn to the
ground and are point sources of toxic materials.
·
The proposed project has visual impacts that would be adverse,
significant, and not capable of mitigation in the setting proposed.
·
The application does not show the location of proposed utility
poles up to and around our client’s property although the cellular antenna
tower would require them and therefore they are part of the project.
·
The Planning Commission should require the applicant to study
alternative deployment strategies and alternative technologies. Without the
submission of these other alternatives, the application should be denied.
Most interesting of all of the above is that the
proposed project was clearly in conflict with the Planning Commission’s
Comprehensive Plan. Fortunately, state law requires that:
The planning commission
shall:
Review the uniform
application in light of its agreement with the comprehensive plan …
And a very good Comprehensive Plan it is. So why staff
didn’t want to compare the proposed project to the Comprehensive Plan is a
mystery to Kreines & Kreines, Inc. See Figure 2 for what we found.
Our client, the homeowner, was told by many friends
that the proposed project was a done deal. Any opposition would be
fruitless.
The homeowner submitted the report prepared by Kreines
& Kreines, Inc. on our review of this application to the Planning
Commission. The Planning Commission voted 7 to 0 to deny the application.
The only venue that state law provides for an appeal of the Planning
Commission decision is a court of competent jurisdiction.
As the T-Mobile attorney passed the homeowner after
losing the vote, he said, “You know, Mr. ______, this is not over.” Just
two months earlier, this attorney’s firm had filed a lawsuit against
another, more rural, Planning Commission.
What should Kentucky Planning Commissions take away
from this story? The state law for wireless is, in our opinion, flawed.
Citizens cannot have a public hearing while being denied access to the
substantial evidence in the application. Further, how can the Planning
Commissions vote to deny a project if, under the federal Telecommunications
Act, they need to have substantial evidence for the denial? How could the
Commissioners consider the substantial evidence in public, under the glare
of public scrutiny, if in fact it is proprietary? Won’t discussion of
whether the applicant's submittals constitute substantial evidence be
exposed to the public in violation of Kentucky Revised Statutes Section
100.987(3)?
In Kentucky, Kreines & Kreines, Inc. believes that the
Wireless Master Plan concept we have developed (we are preparing one now in
the neighboring State of Ohio) would end this problem abruptly. A Planning
Commission could adopt a Wireless Master Plan, then incorporate the Wireless
Master Plan into the Comprehensive Plan. Because Kentucky does not require
zoning to be consistent with the Comprehensive Plan, it would not matter
that the Planning Commission’s zoning ordinance has procedural language in
it that is pro-wireless industry. On substantive matters, the Wireless
Master Plan would be clear, concise and authoritative.
Here is what our client told us after the 7 to 0 vote
was taken:
I am not sure this battle is over, but at least today
I have won a small victory. And that victory I owe to you and all the hard
work that you did for me. Again many thanks, words can never express my
gratitude.
And that’s one of the reasons Kreines & Kreines, Inc.
does what it does.
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This
web site is designed to provide information about
planning for personal wireless service facilities. It is
provided with the understanding that PlanWireless
and planwireless.com are not providing legal,
planning or any other professional advice or services with this
web site. Please contact Kreines & Kreines, Inc.
if you would like to obtain professional planning services. If legal or
other expert assistance is required, the services of a competent
professional should be obtained. |
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