Thursday, August 30, 2018

Federal Appeals Court Ruled Against Oconee County Denial Of Cell Tower Permit, Board Of Commissioners Told

***McRees Mill Road Site***

As a result of a ruling by the United States Court of Appeals for the Eleventh Circuit in Atlanta, Verizon Wireless will be able to build a cell tower on 42 acres on McRees Mill Road off Barnett Shoals Road despite denial of a permit for the tower by Oconee County in 2014.

Oconee County Commission Chair John Daniell announced the court ruling and subsequent negotiations at the Board of Commissioners meeting Tuesday night, just before the Board approved a change to its Utility Accommodation Ordinance to regulate small cell telecommunications technology.

The Appeals Court reversal of a U.S. District Court ruling in favor of the county means the county must issue a permit for Verizon to build the cell tower, Daniell said, but Verizon has agreed not to construct the tower until 2022 at the earliest.

In other action at its Tuesday meeting, the Board agreed to allocate Special Purpose Local Option Sales Tax monies to protect four farms from development as part of the county’s Farmland Protection Program and initiated action to abandon a portion of Peck Circle in the south of the county at the request of a farmer.

The Commissioners also heard a proposal to identify inflow and infiltration problems with the county’s sewer lines and received a positive financial update for the final quarter of Fiscal Year 2018.

Federal Ruling

Daniell announced the ruling of the U.S. Circuit Court of Appeals at the beginning of the meeting on Tuesday.

Daniell 8/28/2018

The Appeals Court in April of this year overruled the U.S. District Court for the Middle District of Georgia, Athens Division, which in 2015 had denied Verizon’s request to force the county to issue a permit for the tower.

The Appeals Court said that the lower court had erred in its determination of the time period allowed for Verizon to challenge the county decision.

The three-judge panel found that the lower court’s ruling was “inconsistent not only with the goals of the TCA (Telecommuniations Act), principles of statutory interpretation, and due process, but also with Supreme Court precedent.”

Required Public Hearing

The Board of Commissioners on Aug. 5, 2014, turned down the request by Sarah Deck for a special use to allow for construction of the cell tower following a negative recommendation by the Planning Commission and objections from citizens in the area.

Verizon said it wanted to lease 10,000 square feet of the McRees Mill Road property, which is zoned for agriculture, for a monopole tower. The special use permit is required for the tower.

Daniell said that the Appeals Court ruling “means that the cell tower will get permitted by the county as a requirement of the Federal Telecommunications Act.”

Daniell said the county had “negotiated a couple of concessions from Verizon,” including a reduction of the tower height from 199 feet to 169 feet, and the agreement not to erect the tower until January of 2022 or later.

Daniell said Georgia law requires that the Board of Commissioners conduct a public hearing on the issuance of the permit, but that the Board is required to issue the permit under federal law.

That hearing will be on Sept. 25 as part of a regular meeting of the Board of Commissioners.

Small Cell Technology

The Board of Commissioners gave first reading to a modification of its Utility Accommodation Ordinance to address small cell technology and other new technologies being utilized in the telecommunications industry as it rolls out 5G technology.

The Board passed a moratorium at a called meeting on Aug. 16 barring the issuance of permits and the acceptance of applications for permits for the installation of wireless communication devices and facilities in the county's rights of way.

The moratorium was in response to a request by Crown Castle of Roswell to renew an expired permit issued in July of 2016 for underground and aerial fiber optic lines and small cell sites in the county right of way along Epps Bridge Parkway and the Oconee Connector.

The new ordinance sets standards for maximum size of small cell wireless facilities and their appearance, requires that existing structures be used if possible, and establishes an annual permit fee of $250 for each facility.

“All of this is governed by the Federal Telecommunications Act,” County Attorney Daniel Haygood told the Board, “which means we don’t have maybe as much leeway as we would normally have on these things. But we can regulate.”

In response to a question from Daniell, Haygood said “I don’t know that we’re going to be able to keep poles from popping up where the companies say they need them. It’s the same thing as with the big cell phone towers.

“When they show up with their data saying ‘we have to have one right here,’ the Federal Telecommunications Act kind of ties our hands,” Haygood said.

Farmland Protection

County Finance Director Wes Geddings asked the Board to approve dispersal of $463,615 as part of the cost of easements restricting development on four farms selected for the county’s farmland protection program.

The Board previously had approved the four farms, but it had not approved the expenditure of money.

Geddings said $304,839 currently is available from SPLOST 2009 and SPLOST 2015, while the amount that the county will be required to spend is $463,615.

Based on projected collections of between $6,000 and $6,500 per month, Geddings said, the county will be able to cover the $158,776 gap.

The current SPLOST runs through October of 2021.

The Board gave tentative approval of the expenditure of SPLOST funds by putting the item on the consent agenda for final action on Tuesday night.

Peck Circle Road

Greg Peck, 2010 Salem Road, south of Farmington, asked the Board to abandon the prescriptive easement on a portion of Peck Circle so he can install a fence across the road.

A prescriptive easement is an easement on property acquired by continued use without permission of the owner.

Peck told the Board in a brief letter he submitted that he wanted to close the road so that he can expand his cattle pasture.

Peck said other property owners would continue to have access to their property via the other part of Peck Circle, which loops back to Salem Road.

The Board put approval of the decision on the consent agenda, but County Attorney Haygood told me after the meeting that the item will have to come off the consent agenda and that the Board will have to declare that the road serves no purpose before it can be closed.

Smoke Testing Of Sewer Lines

Water Resources Department Director Tim Durham gave a presentation to the Board of Commissioners on infiltration and inflow into county sewer lines, which has caused problems for the county in recent years.

Infiltration and inflow of water to the sewer lines can result in spills from the sewer lines and damage to the sewage treatment plant itself, Durham said.

The county has just completed the first phase of an upgrade to its Calls Creek Wastewater Treatment plant, located on the northeast of Watkinsville.

Durham told the Board he wanted to move forward with a program of smoke testing to determine the sources of the infiltration and inflow.

Start In Watkinsville

Durham said he expected to begin the smoke testing in Watkinsville, which is the oldest part of the county’s system.

Durham proposed a two-week information campaign starting in October followed by actual smoke testing from Oct. 15 to 19.

Durham told me in an email message today (Thursday) that the county has 1,996 residential sewer customers, 557 commercial customers, and two industrial customers.

The industrial customers are AmeriPride in Watkinsville and Benson’s Bakery in Bogart.

The county does not have a breakdown of how many of its customers are inside the city limits of Watkinsville, Durham said.

The Board took no official action, but Durham said he expected to be back with bids for the work at the end of September.

Financial Update

Finance Director Geddings told the Board that the county collected $840,607 more in general fund revenue in Fiscal Year 2018, which ended on June 30, than had been projected.

The county actually has spent $868,065 less than projected, Geddings said, but he noted that the books are not closed and the amounts likely will change.

SPLOST collections were strong in the final quarter, Geddings said, and for the year collections are up 7.7 percent over a year earlier.

The same was true for the Local Option Sales Tax, according to Geddings’s report.


The video below is of the entire meeting of the Board of Commissioners.

Daniell announced the ruling on the McRees Mill Road lawsuit at 1:45 in the video.

Discussion of the small cell technology ordinance is at 20:52 in the video.

The farmland protection spending is discussed at 46:15 in the video.

Discussion of Peck Circle begins at 16:00.

The report on the proposed smoke testing of sewer lines begins at 3:09

The financial update begins at 51:23 in the video.

OCO: BOC 8 28 18 from Lee Becker on Vimeo.


Russell Edwards said...

The Oconee County Commissioners could require Verizon to disguise the tower to look like a pine tree. Counties across the nation are doing it:

Zippity said...

That's a great idea, Mr. Edwards. I saw several such "pine tree" towers on a recent trip to Canada.