P&Z Minutes May, 15, 2014

Boundary County Planning and Zoning Commission
May 15, 2014 Regular Meeting

Attending: Matt Cossalman, John Cranor, Ron Self, Caleb Davis, John Moss, Kim Peterson, Scott Fuller; absent: Marciavee Cossette, excused; Bruce Behrman. Staff, Dan Studer.

At 5:30 pm Cossalman, opened the regular meeting and read through the agenda, and introduced the members of the commission.

The first agenda item was review and approval of minutes of the April 17, 2014. There were no additions or changes to the minutes. A motion by Self to approve the minutes was seconded by Davis; the motion passed unanimously.

Cossalman read through the next agenda item script – public hearing for conditional use permit by American Tower Corporation, 14-028. Cossalman gave the description of the proposed project. At 5:40 pm he opened the public hearing.

Meg Demand of Western Land Consulting came forward to speak for the application. Demand stated she was consulting with American Tower Corporation, AT&T and other carriers who wish to co-locate on the tower.

Fuller asked Demand about microwave and radio frequency transmission exposure and possible health effects. Demand pointed out the FCC documentation in the application showing numbers are specific to this tower and numbers are well below levels in the range specified, and lower than levels that may be of concern. As more companies co-locate the engineers will do similar calculations to ensure safety.

Cossalman asked if American Tower will erect the tower and not own it; will other companies actually own the tower. Demand said ownership of the tower will be by American Tower who will lease the Adams land, and lease to other companies space on the tower. AT&T or other companies will not own the tower.

Cossalman expressed his concern for the protection of 4th amendment rights of Boundary County citizens. There is a lot of personal data transmitted by Boundary County citizens via the tower; does American Tower have any means to provide for the security of that personal data against search without an authorized court order? Demand said she would have to table that question and refer it to American Tower legal staff, or even AT&T legal. Cossalman said that would be okay, he is interested in the answer to the question because American Tower owns the tower and AT&T is the party responsible to act in ways to protect Boundary County citizens right to privacy.

Peterson asked about the location of this tower relative to other existing towers already established; and would this help to prevent being picked up by Canadian cell towers? Demand didn't have all “other tower” locations on a map to respond that this was the furthest north. Coverage differs by whose contract the cell user has (AT&T, Verizon, Sprint, etc), also.

Cranor asked about American Tower and it's control over other companies that lease its space, as to safe levels of transmission energy, and security of information transmitted. Demand said that engineers for AT&T work with FCC regulations and ensure compliance with Federal regulations. Cranor asked if American Tower does a follow up to ensure that companies that lease space are compliant with all laws? Demand said that the information developed by AT&T designers and engineers is run through American Tower legal, but was unsure to what depth their study went to verify AT&T's accuracy. Demand said she could ask the legal departments procedure. Concern over other companies co-locating and assurance they are in compliance the same as AT&T has shown, was discussed.

Moss rhetorically commented that it is an interesting discussion, considering the questions coming up about 4th amendment rights and if each company that co-locates on this tower has the same regulations to follow... do they, and does American Tower take responsibility for that?

Cossalman asked Studer for the Staff Report. Studer reviewed the file given the to members, and gave the ordinance provisions and comprehensive plan information pertinent. Peterson asked about other homes and property owners in the area. There are home east on Cove Lane and a home to the south. The city of Bonners Ferry is a large landowner to the west, above the river reservoir and dam. Studer displayed exhibits on the overhead projector to show how the tower visibility will impact the area.

Cossalman opened the hearing for public testimony. No one came forward to speak in favor of the application.

Speaking uncommitted for the application was Daryl Young, Moyie Springs, ID. Young is concerned over Cove Lane, which is a private dirt and gravel road. He was curious about how visible the tower was, and how much noise did it generate? He said he plans to sell his place and wants to know the effects, i.e. noise, that may have an impact on his property value.

Fuller asked if he was selling because of the tower, Young said no.

The next speaker uncommitted for the application was Ryan Unruh, Moyie Springs, ID. Unruh was concerned that there was no utility easement across his property to the proposed development site. Cossalman pointed out that the drawings did show a 30 ft. easement for access and utilities. Unruh stated that in his estimation a 30 foot easement is sufficient for what they wish to accomplish.

No one came forward to speak in opposition of the application.

Demand was allowed to close and rebuttal. Demand referred to a noise study on cell towers, and said there was usually no noise. The diesel generator only runs if the power goes out, and it is in an enclosed building. There is a technician that tests that once a month. The road will have pictures take by a crew before and after the project. The road is likely to improve because of the project.

Cranor asked about the support equipment. Does American Tower maintain it or do the companies you lease to maintain it? Cranor also asked about batteries, and the level of power generated. The generator capability being far in excess of the required need should power go out. The application shows a need for 1 KW of power to support AT&T's antenna, but the generator produces 80 times that. The implication is that there is a lot more in store for this antenna than is being applied for today. In the future the antenna would not resemble what is currently being applied for.

Moss asked if we make a decision on the tower with this current capacity, will P&Z ever have a say as more and more antenna's are added? Studer replied that in Section 10 Standards – any number may be added in the future without review; the exception is if the height is increased, a new application is required. Moss expressed reservation that the application we are reviewing does not reflect what the future project will look like.
Peterson asked Demand how many co-locators will be added, Demand said two more in addition to AT&T. There was further discussion about capacity and types of antennae.

Demand was finished with her closing comments and questions, Cossalman closed the public hearing testimony and went into discussion.

Self asked the members if they could come to a decision without having to table and later hearing Demand provide information from the legal and engineering departments? Cossalman said we need to discuss this, especially while it is still fresh in our minds.

Cranor is concerned with future co-locators and what that may look like. We have no idea and no control and only a simple application with AT&T as a provider. Davis did not feel it necessary for P&Z to review every new co-locator, and Cossalman agreed that he is not so concerned because the FCC is there to protect people from excessive emissions.

Peterson said she had experience with cell tower development in other another state and it was generally a good outcome for everyone, an improvement.

Self said he was more concerned that conditions be established to include dust abatement, and agreement between property owners on the private road and American Tower up front.

Peterson mentioned the income for property owners is a positive thing.

Cranor stated that since the FCC and others can control the future growth of the tower, he doesn't see a problem.

Davis felt the tower is a benefit to all parties: the owner, land owner, and citizens. He feels there are no grounds to deny the application.

The commission discussed considerations. The road is an issue and they will address that in terms and conditions. All trust the company will likely leave the road in better condition. They recognized that property values may be affected, however, felt that it would not be significant, or a reason to deny the application. There was no correspondence or testimony showing concern over emissions, or view. All felt there was a good deal of positive with increased cell and internet service, including public safety.

Discussion turned to 4th amendment concerns. Who and how a condition to protect private data can be enforced, and how the tower company will inform co-locators was discussed. Commission members recognized that corporation attorneys will squabble about this condition, however, it was felt that they should. Cossalman said they should be given notice that the commission will not authorize a facility that will spy on all of us. Peterson cautioned that putting up too many hurdles may cause the tower company to go elsewhere, harm the home owner, when in fact everyone wants the cell coverage. Cossalman doubted the tower company would want to back off the project because they were unwilling to protect citizens 4th Amendment rights. Peterson commented she understands that what they are stipulating is more of a statement; she agreed that at some point you have to take a stand. Cranor felt that the government will go ahead anyway and violate citizen rights – but it doesn't make it right and we shouldn't roll over and allow it. Cossalman felt that large companies shouldn't roll over either and allow citizen's rights be violated. Peterson emphasized that she would support a condition as long as the commission was consistent and would apply this to all towers applied for in the future.

Self felt that the 4th Amendment is written already, and applying a condition as proposed isn't necessary. Cossalman argued that it is violated so much that it should be emphasized. Self mentioned the Sandpoint Sheriff office intercepting texting and placing pins on a map of hot spots. Cossalman said if they do that with a court order it's okay, if not, it's not okay. Peterson said she feels strongly about that, she would support a stipulation against that. Moss said it is not an AT&T issue, it is the person on the bugging end. Cossalman said that the tower company would have to stipulate to their clients that searches of private data without a court order isn't allowed. Moss clarified that the condition makes American Tower get the assurance from their providers that private data will be protected.

Fuller said he was noncommittal regarding the tower, and stated that no one wrote in or testified against it. Cossalman pointed out that the area the tower located in is 10 acre minimum density, and is in a good spot to affect the least people. Self and Peterson stated the location is good, and enhances safety for people in the area. Cranor agreed it is a public safety benefit. Peterson mentioned that the airport board had discussed the tower and it does not affect the airport.

The commission reviewed Section 7.7 Considerations and 7.8 Terms and Conditions. The commission finds that the tower plan is sufficient, the tower and enhanced communication is a benefit, and will not put a burden on taxpayers. Conditions concerned the condition of the road, and 4th amendment rights protection. Cossalman asked if the group would like to table this discussion and wait for more information from Meg Demand. One person was for tabling, Peterson said if the conditions discussed were applied she could vote on it today. Davis felt that the information requested of Demand would not change his vote on the application. Moss agreed that he doubted any more information would surprise him and change his vote on the application. He feels he has enough information to make conditions to the application, and vote tonight. Self said he was wondering what Cranor questioned, why such a huge generator? But then said the answer would not likely change his vote.

Davis presented a motion to approve with three conditions: there is dust abatement, the road isn't damaged, and 7.8.8, require proof of compliance with federal regulations and 4th amendment right to privacy. Peterson said she would prefer that the motion say “to improve the road”. Rewording the conditions were: during construction the road will have dust abatement, the road condition shall be improved, and 7.8.8 proof of compliance with state and federal regulations will include that the facility may not be used to search any personal data without a court order. Self said he would change the wording to “as good or better” for the road condition.

Moss brought up the easements, and assurance there are clean easements for access to the project site. The commission discussed this as a condition also. The group added “to provide documentation of utility and access easements to the administrator”. The motion was amended, and Self seconded the motion. Studer read the conditions, dust abatement will be used during construction, the road will be as good or better after construction, the facility may not be used to search any personal private data without a court order (7.8.8), and documentation of easement rights will be provided to the administrator.

Cossalman asked for the vote: there were 5 in favor of the motion, and one vote opposed. The motion was passed and the meeting adjourned.

Dan Studer

Thursday, May 15, 2014 - 18:00
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