Planners ready for cell-tower debate

Mar. 29, 2013 @ 07:41 PM

Going into a debate that begins Wednesday morning, city/county planners concede that Durham will have to change its approach to regulating cell-phone towers, if only to bring its rules into compliance with state law.

But beyond that, they’re leaving it up to the elected officials who sit on the Joint City/County Planning Committee to figure out what direction any effort to alter the rules will take.

“We’re not going in with any recommendations,” Planning Director Steve Medlin said, referring to Wednesday’s committee meeting. “We’re going to them to make them aware of the situation in terms of current ordinance provisions. We’ll wait to see what their comment is in terms of policy direction in how they want us to proceed.”

Wednesday’s discussion has been triggered by complaints from a group of south Durham residents about a proposed Sprint-network tower that would share a site with a church just off N.C. 751.

The project qualifies for an administration-only permit review because its sponsors propose dressing up the tower to look like a tree – a camouflage measure Durham law has encouraged since 2004.

But opponents of the Sprint project say the N.C. 751 tower will nonetheless stick out like a sore thumb because, at the 120-foot height Durham allows, it’ll be about twice as tall as the real trees surrounding it.

They appealed the staff-level approval of Sprint’s initial application, and Durham’s Board of Adjustment sided with them by saying Medlin and his subordinates should take a second look.

Meanwhile, the project’s critics have urged City Council members to rewrite the law.

A form email directed to them in recent weeks says the ordinance should require notification of neighbors whenever planners receive a tower application; “community discussion” about each project’s effects on safety, land use and aesthetics; buffers from underground gas lines and overhead utilities; proof of insurance from tower owners; and, finally, allotting approval authority for all tower sites strictly to elected officials.

Most of those ideas run counter to rules the council established for towers in 2004. Four of the members who voted on them that year – Mayor Bill Bell and council members Eugene Brown, Diane Catotti, Howard Clement and Cora Cole-McFadden – still hold office.

A November memo from Medlin explained that the 2004 rules encouraged cell companies to use existing or camouflaged antennas rather than proposing all-new, exposed towers.

The promise of a staff-only review for camouflaged installations was the law’s major carrot – and it’s one cell companies have embraced.

Since the rules went into effect, companies haven’t applied for a single exposed, free-standing tower of the sort that would require a from-the-ground-up permit review by the Board of Adjustment, Medlin said.

From 2004 to late 2012, they received staff approval for 189 new antenna set-ups, with 174 of those going onto existing towers or buildings. The remaining 15 – the last being the one on N.C. 751 – were for new, camouflaged towers.

As for the safety issue, the U.S. Congress since 1994 has barred state and local governments from withholding tower permits on the grounds their radio emissions might be a health threat.

North Carolina adopted a similar rule in 2007, along with a ban on city or county inquiries into a company’s business case for wanting a new tower. That includes questions about the need for a tower or signal coverage, questions Durham officials up to now have continued to ask.

Planners say a demand for proof of insurance coverage would be a locally unprecedented addition to Durham’s land-use regulations.

Although Asheville’s government asks that of cell companies, in Durham there’s no rule for “any type of development [that] requires liability insurance, as it is typically considered a private legal matter,” Senior Planner Michael Stock said in a memo for the JCCPC.

Stock added that planners are still researching rules other North Carolina cities use for cell towers.

At the state level, the N.C. League of Municipalities on March 25 posted on its Web site a “wireless telecommunications model ordinance” for cities and towns to consider that its staff worked out in talks with cell-industry representatives.

Its draft offered the N.C. 751 tower’s opponents some support by suggesting that camouflaged towers that are taller than 60 feet and located in residential zones should receive more than just a staff-level review.

It favored putting such projects through a special-use permit review of the sort that in Durham is conducted by the appointed Board of Adjustment, the elected council or the elected County Commissioners.

Medlin on Thursday said his staff hadn’t seen the League of Municipalities model but would at the JCCPC meeting “make [members] aware that this is out there.”

Federal and state involvement makes the entire field of cell-tower regulation a moving target, as legislators on both levels have signaled that they want to encourage the spread of broadband.

UNC School of Government professor David Owens on a school blog noted that Congress only last year further restricted local-level regulatory rights by saying cities, counties and states must approve many types of potential modifications to an existing tower.

Federal Communications Commission regulators are interpreting that to mean it’s OK to raise a tower’s height slightly, even if that means breaking local heights limits, Owens said.