Updated: Jan 20
MOUND CITY — The Linn County Commission on Monday, Dec. 3, voted to issue conditional-use permits to build two telecommunications towers along the U.S. Highway 69 corridor. That includes a 250-foot high tower near the Kansas Highway 152 intersection, and a 320-foot tower on the hill south of Pleasanton near 600 Road.
Both of the towers are in close proximity to existing towers that are fitted with equipment used by AT&T for cell phone service along the four-lane road. And both are in close proximity to existing towers that are of similar height and will provide similar coverage.
AT&T is planning to quit their leases on existing towers and move to the new towers. There is apparently no plan or requirement to remove the existing towers once the move is complete.
The permits, issued to Harmony Towers, hardly followed a harmonious path, particularly when it was discussed by the Linn County Planning and Zoning Commission during its Dec. 14 meeting.
Planning board members split the vote 5-3, with five members voting to recommend approval of the conditional-use permits to the county commission, which had final say in the matter. The sticking points on both towers was that they were being constructed within a mile of the existing towers.
Harmony Towers applied for the conditional-use permit to build the new towers, and owner Steve Ward said that AT&T had contracted with his company to put cell phone equipment on those towers.
Chris Sevedge, attorney for Stinson Law Firm, which represents the company that owns the existing tower, said the company would lose the contract with AT&T. He argued that commissioners should not grant the permit.
The case also brought up the issue of local control vs. legislative control in making local land-use decisions.
In a effort to promote building of towers that would provide wide coverage of cell phone service, the Kansas Legislature in 2016 passed a statute that, according to County Counselor Gary Thompson, would override local zoning boards decisions on tower placement along highway rights of way. However, Thompson said, it was unclear if that statute meant all other towers.
The split vote of the planning board was noted by Commissioner Rick James, who wanted to know the reason for the difference of opinion.
Planning and Zoning Director Bobby Young suggested the reasons included concerns about declining land values or too many towers in the area.
Thompson added that several of the members didn’t see the need to build yet another tower when one was already in place and being used.
Commissioners questioned Young on whether property owners surrounding the areas where the towers would be built lodged complaints with his department. He said that out of the 16 property owners who received notice of the hearing, four responded and all of those responses were against the permit.
Fourteen letters were sent to property owners surrounding the proposed tower near 600 Road. Two responded with one for the tower and one against.
Commissioner Danny McCullough, who represents the Pleasanton area, noted the proliferation of towers along U.S. 69. “I sit out on my deck porch and I look out to the north of us and see nine towers,” he said
Thompson said that in working with the planning commission on this permit, he warned that, although the statute was not very clear, to refuse to issue the permit would likely result in a lawsuit being brought against the county.
However, Sevedge said that amendments to the bill made it clear that the intent of the Legislature was to expand cell service, not replace existing towers.
Sevedge, who attended the planning commission meeting to press the case for denying the permits, pointed out that at that meeting, several members felt like they were forced to vote to recommend the permits for the towers even though they were opposed to that.
Sevedge said, "There were multiple yes votes that expressed discontent with how they had to resolve that particular question and what they were and were not allowed to vote to."
Thompson acknowledged that.
In a separate interview, Dave Berglund, planning commission chair, said that in addition to the three members who voted against recommending the permit, others were against recommending it but felt like they had no choice but to approve it.
“It was explained to us that if we declined, there was a good possibility there would be a lawsuit,” Berglund said. He also pointed out that the statute had never been challenged and that some planning commission members wanted to make that challenge.
“In my opinion, we do a lot of things that make no sense,” he said. “Was (the new tower) necessary? No, it was not.”
At the commission meeting, Thompson also advised commissioners not to deny the permit.
“This is a situation where the statute does not allow us to deny an application based on the availability of collocation,” he said. He added that the statute would not allow the county to deny the permit based on there being another tower nearby.
“Until the courts can give us a clear understanding of that statute, that statute appears to be aimed at proliferating towers,” he added.
After Sevedge said that his clients had no other cellular providers to lease the existing towers, McCullough asked if that company would remove the towers.
The attorney indicated that there were no plans to do so. "We don't have a contractual requirement to do that."
The permit for the new towers, however, contains language that requires the owners to remove the towers at their own expense if they are no longer used.
Thompson said he would research the original permits for the existing towers to see if there was any way the county could pressure the decommissioned towers to be removed.
In a related matter, commissioners approved a permit to build a boat, camper and recreational vehicle storage facility on east side of Kansas Highway 7 next to the north entrance to Sugar Valley Lakes. The property, which is nearly 38 acres, is owned by Thomas and Kaitlyn Hawbaker.
Young said that the owners planned to widened the existing residential entry and driveway and construct a road back to the storage area that would have controlled access and a secure fence. The whole property is included in the permit.
He said the planning commission voted unanimously to recommend issuing a permit.