A company is calling the borough’s handling of its new cell tower plans illegal after the company’s permit was brought to the planning commission this week.
The permit in question is for a new tower on Sawmill Road on a private parcel zoned for industrial use. According to borough code, cell towers are part of the standard, allowed uses for industrial land — so-called “use-by-right.”
For use-by-right projects, borough code requires developers submit land use permits. Land use permits are less stringent than a conditional use permit, and are ordinarily approved or denied by the borough manager, without public hearings or input from elected bodies.
On Tuesday, however, borough manager Alekka Fullerton brought Atlas Towers’ land use permit to the borough’s planning commission for a recommendation, and potentially extra approval conditions, from the elected body.
During the hearing, company representatives faced pointed questioning from both planning commissioners and the public regarding the tower’s impact on a nearby residential neighborhood, including questions about the company’s plan if the tower collapsed, and the impact on nearby property values.
That didn’t sit well with company representatives, who have now spent a year and a half trying to site a tower in Haines, so far without success.
“This application meets all requirements for a permitted use,” Atlas Towers director of legal affairs Mike Powers told borough officials. “Although we’re happy to be here and have this conversation, we believe it is unlawful to spot-zone an application where we meet the code to a T.”
Commission chair Patty Brown said it was the first time she could remember reviewing a land use permit. But borough staff, the ones directly responsible for reviewing the permit, said the extra scrutiny was merited.
Donna Lambert, of the borough’s planning and zoning department, said that because new cell towers are a “hot topic,” it was “reasonable staff would seek additional guidance before making a decision.”
It’s certainly true that cell towers have faced widespread pushback from residents concerned that the towers may harm their health or ruin scenic views. That was no different during Tuesday’s meeting. One resident, Blythe Carter, told borough officials the neighborhood near the planned tower would become “super low income” if they approved the permit.
That public pushback has had an impact on borough officials, said Tom Ditterick, of cell-provider GCI, which is partnering with Atlas on the tower.
“We are wondering why we are in front of the planning commission, because as code reads, we should’ve just been approved in the borough process,” Ditterick said after the meeting. “We know why, and it’s because no one person wants to make that decision the way the public is. I get it, but at the same time, the code is the code.”
Fullerton, who has final responsibility to decide on the permit, acknowledged asking for a planning commission recommendation was different than the normal approval process — different, but not “unlawful,” as Powers had said.
“It’s a use-by-right but not a use-by-right for 190 feet,” Fullerton said. “They have a right to have a tower, but they do not have a right to have a 190-foot tower.”
“Why do we have an industrial zone right next to a residential zone?” Fullerton added. “It’s a zoning failure.”
In the borough code’s approval criteria for tower permits, there is no mention of height requirements or limits — only that the company “clearly indicate” the height of the tower in its application.
Fullerton cited visual impacts as reason to limit the height of the tower. And according to borough code, the manager does have the power to “place reasonable conditions on the approval to ensure that the use will comply with (borough land use code).”
But the six specific approval criteria for towers in borough code do not impose any height restrictions, nor do they include subjective judgements of aesthetic impact.
Ditterick said the tower would not fill cell-phone service coverage gaps, including coverage at the airport, if it was shorter than 190 feet.
“You are making rules up as you go,” Powers told borough officials, saying that the application had met all of the approval criteria.
As the meeting dragged later and later into the night, commissioners decided to postpone their recommendation for another month, and in the meantime plan to raise a balloon at the location and height of the proposed tower, to “assess visual impact” for nearby residents.
Delays for cell tower decisions have been common over the past year. But there are a number of deadlines at play in this specific instance. First, borough code states that the manager must decide on a land-use permit within 10 business days of the application being accepted. If no decision is made at the end of that time, the permit is automatically accepted.
The planning commission’s response will come long after that 10-day period is over. Fullerton argued on Wednesday that the time limit was moot because she had already accepted the permit under the condition it go to the Planning Commission for further review.
Fullerton said she believes she can still impose updated permit conditions based on the commission’s recommendation.
Second, the industry representatives at the meeting say their companies, after months of working through options with the borough, are now out of time. Funding for the tower comes from a federal government initiative to improve rural broadband, Ditterick said. If the towers are not built by the end of this year, the funding will disappear.
Brown, at the meeting, asked Powers and Ditterick if they would accept the community deciding on a location for them. Mayor Tom Morphet, in the audience, moved next to Ditterick with a sketchpad to pitch him on other potential tower locations. But the overtures didn’t seem to land, and Powers said his company had already tried using a borough-chosen location, which was later axed after the Southeast Alaska Regional Health Consortium objected to a location next to its planned hospital.
As the cell-tower debate looks like it will continue to move forward, at minimum for one more month, the tower-builders do look like they have some support.
Commissioner Jerry Lapp said he, and others, would welcome improved cell coverage from the tower. “I think this whole cell tower thing is going to be an issue no matter where we put it,” Lapp said. “But the comprehensive plan suggests people want better cell service.”
Paul Carrington, the owner of the property on which Atlas Towers hopes to build, said the same. And, while he added he was not involved in the permitting debate, he said accepting the lease was within his rights.
“I do own a piece of industrial land and I believe I’m using it for those purposes,” Carrington said.