Commission endorses cell tower ordinance in San Marcos

SAN MARCOS — San Marcos’ proposed cell-tower ordinance received a unanimous endorsement from the city planning commission Monday night, despite being panned by both cell phone companies and opponents of the towers.

That’s compromise — when nobody is happy — the commissioners said.

“This is a perfect example of ‘you’re damned if you do, and damned if you don’t,” Commissioner Carl Maas said.

“Nobody is going to walk away from this happy,” Commissioner Steve Kildoo concurred.

Technically, the commission’s vote was to recommend the Council approve the proposal at a future council meeting.

Among other things, the new rules would discourage cell companies from installing towers in residential and agricultural areas by requiring them to seek a conditional-use permit (as opposed to a less onerous administrative permit) and provide the city with technical proof that the location is necessary to bridge a significant gap in coverage and is the only possible location that would do it.

The ordinance also sets the maximum allowable towers on a given property based on its size.

For example, a 10.1-acre parcel could have a maximum of three cell towers.

Eric Flodine, the commission’s chair, said the inclusion of the maximum-tower language and the conditional-use requirement made his decision easier, despite the opposition from both sides of the debate.

“Having a CUP requirement means that the people will have a chance and we will have a chance and the council will have a chance to weigh in on these application,” Flodine said. “It gives me comfort to move forward.”

Cell-tower opponents railed against the ordinance, arguing the rules did not go far enough to protect residents. One particular group of opponents have been urging the city for stricter rules since last fall, when a homeowner in the Questhaven neighborhood sought — and received — approval for a second, 35-foot-tall microwave tower on his property.

John Signorino, who served as spokesman for the group at Monday’s meeting, repeatedly pointed to the cell-tower issue in their neighborhood, which he said was the “UNICEF poster child for everything wrong with the ordinance.”

He said the proposed ordinance, by virtue of its tower-to-acreage standards, would allow the property owner to seek a third tower on the property in question. He also said that ordinance did not require the city to seek a third-party analysis of the wireless companies’ technical data.

Signorino’s strongest criticism, however, was that the ordinance did not set a minimum distance between cell towers and homes and did not mandate wireless companies to install newer, smaller, less intrusive tower technology.

“The ordinance doesn’t do it,” Signorino said repeatedly throughout his 15-minute presentation to the council.

Signorino pointed to Irvine and Calabasas’ ordinance as examples of one with distance requirements. City staff, however, would later say that Irvine’s ordinance only mandates the distance between towers and Calabasas’ provides a similar “safety valve” provision as San Marcos’ proposal, which a wireless carrier used to get a tower installed within minimum distance.

Federal law prohibits cities from creating provisions that would effectively ban wireless facilities in areas where a coverage gap exists or would ban certain tower technologies outright, said Jonathan Kramer, a wireless law expert contracted by the city to develop the ordinance.

The proposed ordinance, Kramer said, goes as far as the city can within the current constraints of the law.

Wireless companies, however, said they believed the ordinance goes beyond the scope of federal law.

Representatives from Verizon, AT&T and a company that develops the smaller tower technology said some of the requirements, including annual reports to the city’s planning department and the requirement for companies to prove the need to install sites in agricultural and residential sites, would be unnecessarily costly and time-consuming.

Milan Brandon, whose father Jeff Brandon is the property owner whose cell towers sparked the controversy, said the proposed rules would hamper the city’s ability to provide quality wireless coverage to residents.

“This ordinance would put our city at an economic disadvantage to other cities…and hinder progress,” Brandon said. “We must not delay the wireless buildout of our city any longer.”

“We don’t want to see a government taking of rights from the carriers,” said John Osborne, AT&T’s external affairs director. AT&T sent a letter to the city last week that outlined 47 points of contention the wireless carrier has with the proposed ordinance.

After the meeting, Osborne said the fact that both sides opposed the city’s rules didn’t necessarily mean that the ordinance was a good compromise.

“We still believe the ordinance violates AT&T’s rights and ability to place infrastructure as designed to be placed where it is allowed under federal law,” Osborne said.