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News Town board amends wireless communications ordinance

On Monday, the night before Tuesday's election, the meeting of the Franklin Board of Aldermen served as the last time that the board would meet with its current members. Mayor Joe Collins had decided not to seek reelection back in May, leaving the seat up for grabs. Aldermen Bob Scott and Sissy Pattillo both threw their hats into the race, therefore vacating their seats on the board. Only board member Billy Mashburn would be running for reelection.

No last minute policy changes or sweeping decisions were to be made by the board, though an amendment of the Wireless Communications Ordinance was under consideration. According to Town Attorney John Henning Jr., the changes stem from actions taken by the federal government and the passage of the Middle Class Relief and Job Creation Act of 2012.

“Because doesn't that sound like a wireless communications bill?” asked Henning Jr.

According to the amendment the town will still have zoning authority.

“It's an ordinance that occupies itself with where telecommunications equipment [cell phone towers] is put up and how it looks and how it affects the people who live around it primarily. You can still regulate that by way of a special use permit process and you are specifically authorized to do that whether it is a new tower, a substantial modification to a tower or an eligible facilities request,” said Henning Jr.

There are basically three kinds of wireless facilities applications: new towers, substantial modifications, and eligible facilities requests. If it's a change to an existing facility, it's either a "substantial modification" or an "eligible facilities request." The problem is that the statute does not really define “substantial.” It only says that a modification is presumed to be substantial when it increases the height of the tower by the greater of 20 feet or 10 percent; widens it horizontally by the greater of the width of the tower or 20 feet, or increases the equipment compound below by 2,500 square feet or more.

That "presumed" is important because, Henning Jr., says it leaves it up to the municipalities to provide in their ordinances what else is "substantial," and it puts the burden of proof on the municipality to show that a change is "substantial." For example, the town has left in its ordinance that other changes in appearance (e.g., color, materials) are going to be considered "substantial," because those are zoning concerns and zoning regulation of wireless facilities is specifically allowed.

Other changes laid out by the statute says that the town can no longer require the demonstration of need. That is, if a wireless provider said that a new tower would increase availability of their services, that would constitute a need. With the new statute, companies are not required to demonstrate need.

According to Henning Jr., in the spring of 2012, a Verizon Wireless application became stalemated, because the town insisted that Verizon was required to supply technical reports proving the need for a new tower and in the absence of those reports, their application was incomplete, while Verizon insisted that those reports were proprietary business information that they were not required to reveal and that therefore their application was complete. At the time, the statutes said that proprietary business information could not be required, but did not go so far as to spell out that technical reports showing the need for a new tower were "proprietary business information." Also at that time, the 45-day window for demonstration of need with the completed application applied to all wireless telecommunications facilities.

"The board of aldermen conducted the special use hearing anyway, despite the fact that the town felt that the application was incomplete, because our ordinance at the time seemed to require it," said Henning Jr. "Verizon didn't sue the town disputing the above, and we were certain we were right under the law at that time, so in that sense it was a 'victory.'"

The recent changes in the law mean that municipalities and counties no longer require a showing of technical need for a new tower, but the 45-day window now applies only to eligible facilities requests, that are supposed to be so minimal that they don't require much review.

A final change comes with the permit fees that Franklin is currently able to charge companies seeking to erect a tower. The fees have been left at $5,000 for new tower and $2,000 for substantial modification permits but Henning Jr. said that companies will probably fight that fee.

“I think it's justified, I think it's what the industry standard was before these modifications came up,” said Henning Jr. “So we'll look to defend that if and when it comes up.”

Another change in fees is the one for an eligible facilities request. According to the amendment, there will be a $1,000 fee that will go towards an expert consultant if one is used for advice.

“I don't think we'll look to use an expert consultant. I think it will be something that we can clearly tell is an eligible request. It would come straight to you from your landuse administrator with a certification that this one is good to go, [you can] pass it,” said Henning Jr.

Federal and state law says that the municipality “shall approve and may not deny” an eligible request.

“So what are our options? Amend it?” asked Mayor Joe Collins.

“Pretty much, yes sir. If you don't and somebody comes with an application, you'd be obligated to follow the law anyway,” said Henning Jr.

Mashburn moved to amend the ordinance with Jamison seconding. The board passed the amendment unanimously.

The next town board meeting will take place on Dec. 2 at Town Hall at 7 p.m.


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