Commission approves cell tower amendment on split vote

The Linn County Commission approved an amendment on the height of telecommunications towers on a split vote. However, they learned that local governments have little control on placement of those towers (Tony Stoddard / Unsplash)

By Charlene Sims, info@linncountyjournal.com

MOUND CITY –  “I would be one that would absolutely fight KSA 66-2019(f) if that was coming next to my home,” Commissioner Alison Hamilton said forcefully. “I would fight the state on this. I would. That’s my opinion.”

That was Hamilton’s reaction at the Linn County Commission meeting on Monday, Aug. 11, when it was apparent that there was no way for the county to stop installation of any communication tower because of that state statute.

Hamilton’s reaction was similar to how a lot of government decision makers feel when they first come across KSA 66-2019(f) which takes the away the power for cities and counties to regulate the placement of cellular, radio, and television towers in their locals. The statute basically leaves counties and cities to weakened height and setback regulations.

The commissioners were discussing the amendment for tower regulation in Linn County which stated that towers 100 feet or taller would require a conditional use permit and had to have a setback of 110% of their height of the antenna from property lines.

Ultimately, the commission on a split 2-to-1 vote approved the amendment. The decision cleared the way for Peoples Telecommunications to build a cell phone tower adjacent to Tanglewood Lakes nearly eight months after the company first applied to do so.

The amendment guidelines were decided at the July 15 planning and zoning commission meeting and were brought to the board of county commissioners on Monday, Aug. 4, for approval or disapproval. The resolution that was presented to the commissioners that day left out the wording of conditional use permit being required and commissioners Jim Johnson, Jason Hightower and Hamilton, via teleconferencing, decided to send it back to the planning commission for clarification.

At the Aug. 11 commission meeting, former Planning and Zoning Director Darin Wilson came to speak on the process of approving the amendment.

When Wilson stood up at the podium, Commission Chair Johnson asked Wilson if he was working for the county or he was there for public comment.

Wilson answered that he had been put on the agenda.

“That is correct,” County Clerk Danielle Souza said. “He asked to be put on the agenda, and because it was in relation to a planning and zoning issue that is where I put him on the agenda.”

Apparently displeased, Johnson replied, “Well, we’re in department heads right now (on the agenda) is the way I feel about it. Whatever you guys think?”

Both Hightower and Hamilton agreed they should let Wilson speak.

“So there’s been some confusion on this cell tower situation for People’s Telecommunications,” said Wilson.

Wilson explained that in the 1995 Linn County Zoning Regulations (before the state statue was adopted) it lined out that towers 75 feet or higher needed a conditional use permit and that the setback had to be at least an equal distance from all property lines as it is in height.

But, wording was not transferred over to the new Linn County Zoning Regulations in 2023.

in the 2023 regulations, Article 5-3 under conditional use permits refers the reader to additional regulations that are set out in Article 16 for radio, telephone or television transmitters.

But because Article 16 does not have information about regulating cell towers, the planning commission had a hearing and developed new regulations.

The new amendment as recommended by the planning commission on July 15 should read:

Section 16-411 Towers require a Conditional Use Permit and Compliance with the following

a. Radio, cellular, television broadcasting towers, and/or stations, microwave

transmitting and/or receiving towers, and/or stations, or any tower or other similar

structure 100 feet or more in height whether publicly or privately owned provided

the location of every tower must be such that it is at least 110% of the height from all

property lines.

But when the resolution was presented to the commissioners on Aug. 4, the wording “require a conditional use permit” was left out, causing the commissioners to decide to send it back to the planning commission for clarification.

Wilson said that there was confusion about sending it back to the planning commission. The options for the commissioners after the resolution is presented to them are send it back to planning and zoning, vote for it, vote against it, or change it themselves. He said that if it is sent back, state statute requires that the commission send a signed written statement as to why it was sent back. No specific changes were voted on at the Aug. 4 meeting and no letter was written to the planning commission.

Wilson commented to Hamilton, “Ali, you made the comment that you wanted all towers to have a conditional use permit. That’s fine. You’ll have to change this amendment and you’re going to have to have another public hearing to amend the amendment.

“So its going to take another 30 to 45 days with planning it for the public hearing, publications, planning and zoning to come back to you guys.

“All the counties around Linn County are set at about 100 feet. There’s some regulation in Miami County that they can do 200 feet. I don’t see a problem with this amendment as it is written it states in there that similar structures 100 feet or more in height whether publicly or privately owned and provided and location of every tower must be such that it is at least 110% of the height from all property lines

“And it says right above it, tower require a conditional use permit in compliance with the following.   

“If you change that from what you sent back from planning and zoning, they can’t bring it back to you, They have got to have another public hearing stating exactly what you want. And the letter from the commission to planning and zoning has got to state exactly what you want.”

Wilson continued, “I just wanted to come today to add some clarity, and that it is no fault of Ben’s (current county planning and zoning administrator). Ben is in a position that he has to follow a lot of laws and learn a lot of laws and I don’t feel like Ben’s getting the training that he needs to get.”

Next, Wilson showed KSA 66-2019(f) to the commissioners to explain why counties did not have the ability to set too many regulations for towers.

Wilson pointed out that it lists 18 items that governing bodies shall not do to prevent a tower from going in. Wilson explained that the word authority in the statute is the governing body and he said that he heard people making comments from the public that pertained to parts of this statute. For example:

“Authorities SHALL NOT in conformance with this section reject any application in whole or in part based on perceived or alleged environmental effects of radio frequency emissions or exposures.”

At last week’s. Commission meeting, several Tanglewood residents expressed their concerns about the electromagnetic radiation emitted from the tower that close to their homes. Others were concerned that the distance was being amended to allow the People’s Telecommunications tower to not have a conditional use permit (CUP).                                                                       

Wilson continued, “And there’s 18 of these line items in this state statute that pretty much say that you cannot deny a cell tower or a radio tower. With it being in the regulations, public comment does come into effect but you have a regulation that you signed into law that you have to follow.”

Wilson brought up another issue, “That’s the next point that I have is that you asked Jennifer (Jennifer Harlow, CEO of Peoples Telecommunications) to continue on with getting a CUP based on what regulation? You’ve got to adopt something before she is required to get a CUP.”

When asked what he thought about this amendment, Johnson said since this is just stating that anything under 100 feet does not need a CUP.

Hamilton questioned, “But if you are within 100 feet on ag (agricultural zoning) but next door is residential, and you have a tower being built, those surrounding neighbors even though we usually send within a thousand feet for a cup, correct? They would not be notified.

Zoning Director Souza answered, “If it’s a hundred feet (or more) yes because it requires a CUP, but less than a 100 feet no.”

Hamilton continued, “All right so if it’s 99 feet and its 99 feet from my home because ag land is here but residential here. A 99-foot tower coming up at 90 feet from my home there’s still no CUP? And that’s what they had an issue with.”

Hamilton said, “ I want to know if the tower is going to be built.”

Hightower said, “So what grounds are they going to have to fight against it?”

Hamilton explained, “Is this statute 66-2019(f) what you are talking about? I have never read through this entire statute. I do remember attending multiple meetings and listening every time you get a tower you always approve you never question them. They’re always approved and that was very frustrating to me.”

Johnson said,”Well the reason we did that is because the state statute says you cannot deny the tower.”

Wilson told Johnson that he was correct and that the county could deny it but there will probably be legal ramifications for it.

Hamilton said, “I’m thinking that the CUP should always be submitted with the tower whether its 10 feet high or 100 feet high.”

Wilson asked, “So what you are saying is if somebody wants to put up a television tower that’s 40 feet at their house they have got to get a CUP.”

Hamilton responded,  “Yeah, so that does get tricky, but your saying the small version of a little tower or a little antenna and I’m thinking of 75-foot tower right next to 75 feet from my home. And to me that’s not okay. And it’s not okay to put that by any home I don’t think in that close proximity.

“I would not want to live next to one and I would want a say if it was coming next to my home and that’s just where I stand on it. There’s two others that might have a different opinion. That’s fine. I would be one that would absolutely fight 66-2019f if that was coming next to my home. I would fight the state on this. I would. That’s my opinion.”

Wilson said, “That’s fine, you are entitled to your opinion.”

Wilson told the commissioners,  “I think at this time it comes down to a vote on whether you want to send it back and amend it to what Ali wants or you make your vote to approve or deny.

The commissioners then discussed tabling it for a week. County Counselor Jacklyn Paletta said she did not see why they couldn’t table it for a week.

Wilson said, “So you can table it but planning and zoning cannot discuss it tomorrow night because it wasn’t sent back in written form.”

The discussion went back to the People’s Telecommunication CUP for building a tower. Last week the commissioners had told her that she needed to fill out an application for a CUP.

Wilson asked besides where the regulations now say a person has to fill out a permit what regulation are you going to make her stand to? There’s nothing in the regulations for height or distance.

Hamilton said, “And she did and it went to public hearing and then it was canceled and no one was able to speak on it.”

Wilson repeated, “But what regulation are you going to make her stand to? There’s nothing in the regulations right now for height, distance. She could go build it right now. And if you went after her based on your regulations, what are you going to go after her for?

“If she built the tower and there’s no regulations other than saying you’ve got a CUP, what grounds are you going to make her take it down? Cause there’s nothing stating how tall it could be, the distance from a property.”

Hamilton said, “That’s all decided in the planning and zoning and they bring it to us.”

”And how can planning and zoning decide it?” Wilson asked. “They don’t have a regulation to follow.”

Paletta explained, “So this is the reason why the planning and zoning had made the amendment to make it conform with their entire book which was the 100 foot or less did not require the CUP because of the changes they had made earlier.

“ßAnd so if you guys are wanting to send it back because you want there to be some type of conditions then you’re going to have to specify what those conditions are.”

Hightower said, “I am fine with the regulation what it states right there.”

Hamilton asked if it could be sent back to the planning and zoning with two different opinions from the commissioners and they could look at both.

Paletta answered, “If you vote and it is 2 to 1, it’s over.”

Hightower asked Johnson, “How do you feel Jim? What do you think about it? That’s the question.”

Johnson answered, “Well, I don’t think under 100 feet that you can stop a landowner from doing what he wants to do myself. Whether its a third party that comes in there and does it next to somebody. I have a little bit of an issue there maybe. But on an individual I don’t think that we should have a say over if he wants to put a tower less than 100 feet up, put his antenna or whatever he wants to do. I think he should be able to do that.”

Hightower asked Johnson, “So are you okay with that as it is written?”

Johnson replied, “We can’t stop the towers from going up, I don’t believe. I mean, it’s everything I’ve been told. There’s no way we stop them. So but that’s what they choose to do.”

Wilson added, “If you read regulations from other counties, basically the way their regulations dictate height and setbacks. That’s the only thing that they’ve allowed the counties or the governing bodies to govern.”

Hightower said, “I’ll make a motion that we approve resolution 25-19, a resolution amending article 16 of the Linn County Zoning Regulations.”

Johnson seconded the motion. The motion passed 2-to-1 with Hamilton voting against it.

Before the final vote, Hightower clarified that he had asked Paletta several weeks ago whether it was okay for him to vote on this amendment since he was on the board of People’s Telecommunication.

Paletta said that there was no conflict because Hightower was not voting on the CUP for People’s Telecommunications but on an amendment to the zoning regulations.

Paletta said that if there was a vote on Peoples, Hightower would have to recuse himself from the vote.