Cell-tower foes wary of ordinance change

Jan. 10, 2013 @ 08:17 PM

Opponents of a south Durham cell-phone tower aren’t happy that an impending revision of the city and county land-use ordinance might give Durham’s planning director the final say over many such projects.

But administrators say the move is dictated by a 2009 state law that narrowed the ability of unelected officials to make judgment calls about land-use permits.

In response to the law, the City/County Planning Department has proposed eliminating a multi-department, staff-level review panel that until now has wielded approval authority over developers’ site plans.

The Development Review Board for now also has the final say over the placement of camouflaged cell towers like the one, disguised as a pine tree, residents like Donna Rudolph and Dolly Fehrenbacher are fighting along N.C. 751.

“It’s not a perfect forum because they aren’t legislators, but it’s 10 ears to hear your statement rather than one,” Rudolph said, questioning the rationale for eliminating the panel.

If the board is disbanded, City/County Planning Director Steve Medlin would inherit much of its job, albeit with much less latitude to turn down projects that meet formal design standards.

Medlin’s top lieutenant, Assistant Planning Director Pat Young, said the 2009 law reserves authority over judgment calls for elected officials or the appointed Board of Adjustment, where they’d be handled in court-like, “quasi-judicial” hearings.

The law, sponsored by state Sen. Eleanor Kinnaird, D-Orange, required such hearings whenever a permit approval involves “a discretionary decision on findings of fact” about broad questions like whether a project would hurt property values.

Durham planners have drafted a revamp of city and county land-use rules because City Council members and County Commissioners had long delegated a number of such decisions to staff, particularly when they involve small projects.

Camouflaged cell towers are included in that category, to the recent chagrin of south Durham residents like Rudolph and Fehrenbacher who oppose Sprint’s plan to put one next door to St. Barbara Greek Orthodox Church.

Sprint’s plan made it through the Development Review Board, but opponents appealed to the Board of Adjustment. The adjustment board sent it back to the staff for a second look.

Young said the Development Review Board will likely finish its second look at the St. Barbara/Sprint tower before the council acts on the impending ordinance changes.

Meanwhile, planners at the council’s request are preparing a white paper on options for changing the local regulatory scheme for cell towers. That should reach a joint panel that includes council members and commissioners in March.

Requiring cell companies to obtain a special-use permit – approvable only through a quasi-judicial council, commissioner or Board of Adjustment hearing – is the “primary option” if officials want to give the public a chance to weigh in on future tower projects, Young said.

Even there, the state has limited local-government authority. It bars cities and counties from considering a tower’s radio emissions a health threat. And the Kinnaird bill in 2009 barred them from accepting lay opinions about a project’s effect on property values.

One council member, Eugene Brown, signaled he would be reluctant to see the council get more deeply involved than it is now in permit reviews.

As things stand, it only rarely needs to hold quasi-judicial hearings on permit requests. Most land-use matters that reach members are zoning decisions, which involve a looser set of procedures because state law allows them to approve or turn down a rezoning request for almost any reason they see fit.

Rare though quasi-judicial hearing are in Durham, the council did face one Monday night, on a proposed McDonald’s near Wellons Village. It took more than an hour, despite a complete lack of citizen opposition to the project.

“That was painful,” Brown said.