AT&T Cell Tower Decision
Here are my thoughts on why I voted the way I did regarding the application from AT&T for a Conditional Use Permit to install a cell tower on Potlatch Hill. Below is what I entered into the public record.
After listening to the Appellate and Applicant discuss the issue, it became clear to me that the BOCC made a terrible mistake in its initial decision.
Availability of Cell Service – Federal law is clear that a local jurisdiction cannot prevent telephony service from being provided to individuals. It’s unequivocal. And providing such service is a necessity, so no local jurisdiction should be able to prevent such service from being provided to a community where none currently exists. This statute was written when land telephone lines were well established and cell service was in its infancy.
Back in the early 1990s, it was well understood that large portions of the country did not have cellular service. However, as cellular service’s reach to the population rose, the threshold for proving gaps in service should correspondingly rise. This is especially so in areas where service already exists.
In a desolate place where it is evident that service does not exist, the threshold should be low and approval for such a Conditional Use Permit should almost automatically be approved. However, in places where service already exists, the onus should be on the applicant to demonstrate beyond the use of a software program that service does not exist, and that certain people currently are unable to get service that they want. In fact, any group that is unable to get service in a populated area should be an easily identifiable group.
The problem in this instance is that cellular service does exist in the area and the Applicant’s supporting information does not adequately address filling in any gaps in service where people are not being served. In fact, the projection maps that the Applicant provided (which were created by a person hundreds of miles from the proposed tower site) illustrated how service from this tower would significantly overlap with existing cellular service within the community. There was no supporting data included with the Applicant’s map projections and no real world test data to support how gaps in service existed where people resided, and how this new tower would fix these gaps of service as a result of its installation.
The Applicant provided no additional evidence outside of computer generated map projections of the service “footprint” that the tower would possibly provide. The Applicant did not share the variables used that were inputted into the projection software, or any other supporting data, that could substantiate how these software programs developed their map projections. It was simply take our word for it, despite service already being offered in the area and no identifiable contingency of people who were not currently getting cellular service.
Further, there was no attempt to provide actual data of cell tower radio measurements throughout the proposed service area to demonstrate with reasonable certainty that gaps in service did exist and that people were being denied this right to service because that proposed tower was not there. This form of real-world testing is the ultimate proof of deficiencies or gaps in cellular service, which could conclusively show the need to rely on this statute and compel a local jurisdiction to approve the Conditional Use Permit.
There was no way for the BOCC to accurately identify if this request was a service issue or an economic issue. An economic issue would, for example, be where the Applicant was seeking to install a tower that is in a more suitable location with a bigger footprint to provide service where it already existed, thereby allowing the Applicant to retire an existing tower (or towers) to save money over time. There was no way for the BOCC to know with certainty that this tower was actually filling in a gap for service given the limited information provided by the Applicant.
Additionally, the Applicant provided no lists of addresses or locations where people regularly conduct business where service was not currently provided and that this tower would serve. Further, no member of the public came forward to inform the BOCC that they did not have service and that the installation of this tower would resolve that issue.
I believe the BOCC made a terrible mistake by ignoring these significant factors when it made its decision in 2022. If the Applicant can provide actual data of people who are being left without essential cellular service in an area and how this proposed cellular tower location is the only feasible location to provide such service in the affected area, compared to other locations, then the BOCC would have had the ability to make an informed decision.
Unintended Consequences to the Community – One of the other factors the BOCC must take into consideration is how the addition of a structure requiring special permitting could affect the surrounding community. The issue of fire is a reasonable concern. The Appellate suggested that with proper grounding, the fire risk is satisfactorily mitigated. But do other entities that can affect the community agree?
It is important to note that residents in this particular community already have significant issues with fire risk and that the installation of a cellular tower does not take them from zero risk to high risk. Instead, one could reasonably argue that the addition of the cellular tower poses some elevated risk, but is currently indeterminate. This is a factor that the BOCC needs to consider, given how this can significantly affect surrounding property values.
The reason I suggest this is because any elevated risk in fire could adversely affect the surrounding property owners from affording or obtaining satisfactory homeowner or fire insurance as a result of their homes being so close to a cellular tower in a wooded area.
If, after the installation of a cellular tower, the surrounding community discovers that their insurance premiums rise as a result, then that cost impact must be taken into account. Further, because so few companies are willing to insure homes in high-risk fire areas, could the addition of such a cellular tower be the deciding factor for an insurance carrier to stop offering policies to the surrounding homeowners.
Such an event could have catastrophic consequences to homeowners and significant impact on their property values and ability to keep or obtain a mortgage. If a mortgage company will not finance a property because there is no ability for a prospective homeowner to obtain a fire policy, then the values of the surrounding homes will be devastated.
The BOCC made a terrible mistake by not considering this factor in its decision.
Health Risks – The cellular towers may or may not have an adverse health effect but the BOCC could not take this factor into consideration per law.
Water Scarcity to Fight Fires – the area is already in a high-risk fire area and the ability to fight a fire is already diminished with limited water reserves. The question that must be answered in order for this factor to be taken into consideration is (I believe) how much does the addition of a cellular tower elevate the risk of fire in the surrounding area, compared to the existing conditions? That question could not be satisfactorily answered.
Set Backs – The setback issue applies to where the structure is located, not the fence line. This would be no different than how far back a home is from the road. It’s the home that is measured and not a fence that may be erected at the property line.
Conclusion – Per the findings, I recommend that the BOCC deny the request of the Applicant and rule in favor of the Appellate. That basis is formed on the following factors:
The Applicant did not satisfactorily prove that service was currently not being offered to a specific group, thereby compelling the BOCC to issue the Conditional Use Permit. That group of unserved people never materialized to publicly state that it was not getting service and wanted service, thereby demonstrating that services are already available and adequate for the community. The lack of a real-world study with actual data demonstrating a legitimate gap in service and identifying those people who are unable to get service currently would’ve properly addressed this aspect of the decision.
By granting the Applicant the Conditional Use Permit for a cellular tower, it could cause possible economic harm by affecting the surrounding homeowner’s ability to obtain sufficient fire insurance or cause insurance premiums to rise enough to cause economic harm. A study of this effect should be required.