Missteps by county cloud procedure on cell tower approval

A series of missteps by Linn County officials has snared an attempt by Peoples Telecommunications to place a cellular tower near Tanglewood Lakes. (Dylan Carr / Upsplash photo)

By Charlene Sims, info@linncountyjournal.com

MOUND CITY – After several missteps by the Linn County Commission and the county’s planning and zoning department, it appears that the Peoples Telecommunications 80-foot tower could be on its way to being erected near Tanglewood Lakes.

The zoning commission clarified the regulations at the Tuesday, July 8, meeting by making an amendment to Article 16. But discussion at the commission meeting on Monday, July 14, still adds confusion to the project.

Planning and Zoning Director Ben Souza, being new to the position, said he did not realize that he needed to have a resolution prepared for the commissioner’s to vote on but would get one ready for next week.

Commissioner Alison Hamilton said she had received many phone calls about this and was concerned about the people who received the original letter about the public hearing for the tower and then never got to express their concerns at a public hearing because it was not held.

Hamilton asked Planning Director Souza to send out a letter to them explaining that the county was going a different direction but that they will have another opportunity to speak but it is in front of the commission now.

“But we’re not holding the hearing here in front of the commission,” said Commissioner Jason Hightower.

Hamilton said she thought the citizens needed to know that that conditional use permit is now null and void. And then we went a different direction because we are changing our planning and zoning regulations.

It was determined that, since a letter was being sent out, the resolution could be voted on Aug 4.

Hightower said that he just wanted to make it clear on this that he has been out of this situation because he has a conflict of interest due to sitting on the board of directors for Peoples Telecommunications. “So, I won’t be voting on it regardless,” said Hightower. 

In March, when there was another new planning and zoning director who had not been trained, a letter went out telling nearby landowners that there would be a hearing for a conditional use permit (CUP) for the cellular tower. That information was incorrect. The zoning regulations did not even mention that a cellular tower 74 feet or less needed a CUP.

That information had been left out of the updated regulations which previously said that any tower over 75 feet needed to apply for a permit. The only conditions that the county could add was setbacks. In 2020, the Kansas Legislature voted to remove local governments’ power on deciding whether a tower could be installed that is regulated by KSA 66-2019.

The only regulation that was addressed by the most current zoning regulations was the height of the tower and that was in a miscellaneous section on heights in the regulations.

At the July 8 planning and zoning meeting, discussion was held about the information that had been published in the paper about the public hearing for this amendment.

It was questioned whether the notice had been published at the correct time about the public hearing.. 

Planning and Zoning Director Ben Souza said it had been sent to the newspaper on June 2. Planning commission member David Fisher said it was published on June 11.

Planning commission Chair Elizabeth Staton said that they were good to go with it. 

However, there was discussion about a different timeline for the tower’s approval, so Staton asked former planning director Darin Wilson to speak to the commissioner.

“On a zoning amendment change, you have to post 20 days notice in the official county newspaper. It was posted 28 days before that. For an amendment, you can vote right now because you’ve already had a workshop on it. Then you do not have to wait the 14 days to take it to the commissioners.

“Mr. Souza can take it to the commissioners next Monday because it’s an amendment. It’s not a conditional use permit. It’s not a variance. I don’t have the regulations in front of me or I’d read the specific article for you, but that is the state statute that on an amendment it’s 20 days and then public hearing, which you are having the public hearing right now. Then you don’t have to wait the 14 days like you would on a CUP. It’s just a working amendment.” 

Wilson, who is now a planning director for the city of Garnett, quit the zoning director’s post last November, but offered to stay on part-time to train a new director. However, after the commission dragged its feet on hiring a replacement, Wilson left the county’s employment at the end of January. The county commission has hired two directors since then with neither one having a background in planning and zoning and the commission apparently has not arranged for training.

At the July 8, planning and zoning meeting, the members voted to make an amendment to Article 16 that stated towers 100 feet or taller need a CUP in the agricultural zone. The amendment also included that the setback from property lines was 110% of the height of the tower. 

The amendment includes radio, cellular, television broadcasting towers, and or stations, microwave transmitting or receiving towers and stations or any tower or similar structure 100 feet in height or more, whether publicly or privately owned provided the location of every tower must be such that it is at least 110% of the height away from all property lines that is adjustment.

Vice Chair Paul Porter clarified that what this meant is that on agriculturally zoned land any tower 99.9 feet or less will not require a conditional use permit. 

Discussion at an earlier planning and zoning workshop determined that towers would not be feasible in lake communities because of the 110% set back from property lines and the zoning regulations did not allow them in those districts.  The one hundred foot height was decided on because surrounding counties were set at that height.

Jennifer Leach-Harlow from Peoples Telecommunications, had been dealing with the issue of whether a CUP was needed since March. She had been working with the former planning and zoning director, Kent Harris, who had replaced Wilson at the first part of February.

At the commission meeting on April 21, Leach-Harlow told the commissioners, “I’m here with questions I guess. I came in on (March 17) and spoke to planning and zoning (Harris) and got with them on a tower that we are needing to erect in Linn County up by La Cygne and planning and zoning (Harris) came to my office and instructed me at that point that I did not need a CUP.

“Then we planned, ordered, did all of the equipment. I verified before I sent in the last purchase order request on (April 10). I emailed the planning and zoning again. I received an email that said I followed up, you do not need a CUP because of the height of the tower you are putting in. 

“Okay, so then we met with Tanglewood on erecting this tower and we had a few people in that community that had concerns about the tower so then they called the county and then I got feedback of ‘Hold off  we’re not sure if you need a CUP or not.’ 

(On April 14, Harris resigned as planning and zoning director and interim Public Works Administrator Jesse Walton took over those duties.) Well I feel like I did my due diligence. I verified with the county twice. I was instructed that I did not need one and now there’s question. 

“I haven’t met with Jesse because he’s been out. Jesse and I have talked about it. I know that he found some information out. But this all came about prior to Jesse and then now he’s trying to dig up information to find out. And I just feel like I’ve already made the purchase. I have the equipment and if I have to do a CUP that adds a whole ‘nother round to this that could take more time and I’m just trying to find an answer. Can I proceed? Can I not proceed? As a commission, what can you do for me? I mean does anything that these prior engagements that I made with the county have any bearing of me proceeding on or do I have to possibly delay this project even further to find out?”

Commission Chair Jim Johnson told her, “I would think we would want to run it past our legal, Jennifer. That would be my answer.”

“I’m sure you can see my frustration,” Leach-Harlow said. “When  you do a project and you go through all the steps that you feel like that you are supposed to, and you get those answers, and then you’ve spent thousands of dollars, and then it’s like well. It’s like I can’t do business like that and I don’t feel like that’s fair. But anyway, I understand. Would it do me any good to go speak to counsel myself? Is she here?

Hamilton said that the attorney would be gone the next few weeks. County Clerk Danielle Souza said she could get her an email for the counselor.  

On April 28, Harlow told the commissioners that she and Commissioner Hamilton had a conversation with interim Public Works Director Jesse Walton and were able to resolve the issue. She said she then worked with Tanglewood Lake Owners Association and came up with an agreement that was best for both Peoples and Tanglewood. 

“In fact, the position that we were taking we will not be going inside of Tanglewood and that what we are doing we do not need a CUP, we will go forward and get our permit submitted to you. We were able to resolve our issue after talking with Jesse last week,” said Leach-Harlow.

At the May 5 meeting, Walton told the commissioners that the regulations needed to be updated for telecommunication towers. He said that regulations needed updates for adding height limits for towers, relating to Peoples Telecom tower situation.