Complaint Seeks PSC Review of Cell Tower Siting

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Complaint Seeks PSC Review of Cell Tower Siting  Posted: January 11, 2011





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Come the Complainants, L. Glenn and Sue Shadoan, by and through counsel, and for their complaint against Bluegrass Wireless, LLC (hereinafter Bluegrass Wireless) state as follows:

1. Complainants and Respondent Bluegrass Wireless were parties to a previous proceeding identified as In the Matter of: Application of Bluegrass Wireless, LLC for Issuance of A Certificate Of Public Convenience And Necessity To Construct A Cell Site (LILY II) In Rural Service Area #6 (Laurel) Of The Commonwealth of Kentucky, PSC Case No. 2005-00320.

2. During the briefing of the jurisdictional issue in that case, in a May 24, 2006 filing in PSC Case No. 2005-00320, the company asserted that the London and Laurel County Planning Commission had jurisdiction over cell tower applications since the Planning Commission had adopted general planning and zoning regulations in accordance with KRS Chapter 100 and ?[t]he statutes do not require promulgation of cellular communications-specific regulations.” According to the company, “[n]o language in any of [the relevant statutes] mandates that the local planning unit adopt regulations specific to cellular communications systems before it may review applications[,]” and that “where a cellular provider proposes to build a cell site in an area with a local planning unit
that has adopted planning and zoning regulations, it must submit its application to that local planning unit so that the local planning unit may review the application in light of the planning and zoning regulations already in place.” (Emphasis added).

3. The Kentucky Supreme Court decision in the case of Kentucky Public Service Commission v. L. Glenn Shadoan, et al., 2009-SC-000053-DG has clarified the construction of KRS 100.987(1) and other statutes pertaining to the jurisdiction of the PSC over cellular antenna towers, holding that:

"If the area of the proposed cellular tower has a planning unit that has adopted planning and zoning regulations, the jurisdiction over matters relating to cellular tower placement and construction rests with that planning commission, not the PSC, regardless of whether the planning unit has enacted regulations specifically relating to cellular towers. If there are no regulations specifically pertaining to cellular towers, as in the present case, the applicant will, however, still need to meet the general restrictions of the particular zone in which the proposed cell tower is to be constructed, e.g. permitted uses within the zone, height and setback requirements, etc."

Opinion, p. 10. (Emphasis added).

4. Under the Court’s construction of KRS 100.987,the London-Laurel County Planning Commission would have jurisdiction over the construction of the Bluegrass Wireless cellular antenna tower in question only if the area of the proposed (and now constructed) tower had zoning in place that covered the property in question.

5. In this case, there is no zoning in place, since the tower is in the county, and, according to the attached December 2, 2010 letter from the Building Official for the Department of Housing, Buildings and Construction, Division of Building Code Enforcement,

"The City of London has adopted a zoning map which separates the City of London into separate zoning districts. The zoning does not extend into the county. Laurel County does not have any zoning districts."

Id. (emphasis added). A copy of this letter is attached hereto as Exhibit A.

6. This statement is consistent with the language of the Development Ordinance for London and Laurel County, Kentucky that was adopted as Ordinance 917 on December 13, 1996 and is located in Ordinance Book 18 of the City of London, which states at Section 203 that:

"On and after the date of adoption, these regulations shall govern land use, the subdivision and layout of land parcels, and structural development in London and Laurel County, as described below:

1. The regulations governing the use of land and structures (zoning) are applicable to the area within the corporate limits of the City of London as shown on the Official Zoning Map.

2. The regulations governing the subdivision and development of land are applicable to the areas within the corporate limits of the City of London, and throughout Laurel County.

3. The regulations governing the development of buildings (building, plumbing, electrical, and housing codes) are applicable to the area within the corporate boundaries of the City of London."

A copy of Section 203 is attached as Exhibit B.

7. Additionally, while the City of London adopted An Ordinance Regulating The Siting Of Wireless Telecommunications Facilities on October 26, 2007, that Ordinance applies only to a company “that proposes to construct an antenna tower for cellular telecommunications services or personal communications services within the City of London[.]” Ordinance 2007-14 Section 65.020(A). A copy of that provision is also attached as Exhibit C.

8. With the Supreme Court clarification that, while specific cellular tower zoning regulations are not necessary for jurisdiction to vest with the local planning unit, but that general zoning regulations are necessary in order for that jurisdiction to vest with the planning unit, it is clear that the Public Service Commission retains jurisdiction over this tower due to its location in Laurel County outside of the corporate boundaries of the City of London.

9. The cellular tower in question, which has been constructed by Bluegrass Wireless without advance application to the Public Service Commission, is located adjacent to the Shadoan property, which is located at 550 Shackle Road in Laurel County, Kentucky. Attached as Exhibit D is a Google Map printout of the location of the Shadoan property at 550 Shackle Road, which becomes Hammock Road shortly after it crosses Fariston Road.

10. The Shadoan property and the property on which Bluegrass Wireless made and later withdrew application to the PSC, is (as can be seen from the portion of the Figure 7-5 of the London-Laurel County Comprehensive Plan) outside of the corporate boundaries of the City of London and thus, outside of the scope of the Development Code and zoning regulations adopted for the City of London.

11. Given the lack of zoning of the property on which the cellular tower was constructed, the review of the siting of the Bluegrass Wireless cellular antenna tower falls within the jurisdiction of the Public Service Commission according to the analysis of the statute under the Supreme Court decision.

Prayer for Relief

Wherefore, Complainants respectfully request:

1. that the Public Service Commission assert jurisdiction over the tower in question and open a case before the Commission regarding the siting and construction of the cellular antenna tower;

2. that the Commission request that Bluegrass Wireless provide a complete application, and that a hearing be held thereon;

3. that Commission staff review that application for compliance with applicable statutes and regulations; and

4. that the Commission direct any removal or remedial actions that may appear warranted on the basis of that application and the agency review thereof, and any testimony or other evidence adduced at hearing.

Respectfully submitted,

Tom FitzGerald
Counsel for L. Glenn and Sue Shadoan

January 10, 2011

By Kentucky Resources Council on 01/11/2011 5:32 PM
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