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County says 'no' to cell tower in backyard

The Henry County Board of Commissioners has closed the door on a request to place a cell tower in a residential location, and the cellular service provider said it is pondering what to do next.

During its March 16 meeting, the board voted 3-2 to deny an application by T-Mobile to place a tower on property located at 79 Chafin Drive in McDonough.

Before voting, Commission Chairman Elizabeth "B.J." Mathis read a resolution drafted on the cell tower request: "I assume board members felt that T-Mobile didn't fully prove that an alternate [location] couldn't be found, verses placing it in someone's back yard," Mathis read. "This is the first time we have had an appeal of a cell tower. The controversy is really over whether or not cell towers have the authority under the Telecommunications act of 1996 to locate anywhere they want, even at the detriment of residents affected by the tower."

District I Commissioner Warren Holder, who voted against the denial, said he believes the cellular provider has a right to erect its tower at the location it requested. "Legally, I don't believe we had grounds to deny T-Mobile, simply because it was in a location people didn't like," he said.

Federal law states that the location of a cell tower is no basis for denial of an application, and the commission's vote violated the law, according to Holder.

The Federal Communication Commission's 128-page Telecommunications Act of 1996 says that its purpose is to "promote competition and reduce regulation, in order to secure lower prices and higher quality services for American telecommunications consumers, and encourage the rapid deployment of new telecommunications technologies."

In her resolution, Mathis wrote, "While the Federal Telecommunications Act prohibits local governments from discriminating against telecommunications providers, it does not prevent the authority of local governments to regulate the location, construction and modification of wireless telecommunication facilities, such as the one at hand."

Resident Tami Hoover had filed an appeal, earlier this year, against the cell tower, which would have been placed 256 feet from her home. "I'm pleased," said Hoover, who lives at 75 Chafin Drive. "I think it was obvious by the statement Chairman Mathis read that the county attorney and the commissioners reviewed all of the evidence and details provided."

She said she did not expect a unanimous decision, and if T-Mobile chooses to pursue the matter further, the company will likely file a lawsuit. "If T-Mobile decides to appeal this, it's no longer just a board decision," added Hoover.

"We are disappointed with the county commission's decision," said Ann Brooks, a spokesperson for T-Mobile. "We are tying to provide improved service to our customers in Henry County, and we are exploring our options."

Brooks declined comment as to whether the company will insist on placing a tower at the Chafin Drive site, or choose another location.

Hoover had spoken against the cell tower being placed in her neighborhood, at the Feb. 16 commission meeting. At that time, she presented the commission with the results of a survey she conducted in January, revealing that, out of 150 people surveyed, only two were T-Mobile customers.

Prior to voting on the cell tower issue, Mathis gave the commissioners two alternatives. The first was a motion to reverse an approval of the T-Mobile application. That approval had been given by Ray Gibson, former director of the county's Planning and Zoning Department, in December. Hoover filed an appeal to Gibson's decision on Jan. 7.

The second alternative was a motion to table a final decision on T-Mobile's request for at least 30 days, until the cell phone company provided the commission with additional information, including a "real estate affidavit" demonstrating T-Mobile's efforts to locate alternate sites, and a "studies commissioned" statement from T-Mobile on the effect cell towers have on residential property values.

The board ultimately chose to take action only on the first alternative –– to deny the request. Commissioners Reid Bowman, Johnny Basler and Rick Jeffares voted for the proposal, and commissioners Randy Stamey and Warren Holder voted against it.

The county Planning and Zoning Department tightened up its cell tower regulations in November, said County Planner Jeremy Gilbert, but the T-Mobile request was made in June 2009.

Even if T-Mobile had made its request subsequent to the passage of the newer regulations, it would have been hard to predict whether the request would have been approved, said Michael Harris, division director for the county's Planning and Zoning Services department. The newer regulations require review and recommendations by an outside consultant, called a radio frequency engineer, something the old regulations did not call for, he said.

The final decision as to whether to approve a cell tower application now must include the consultant's recommendations, he said. "We don't have a radio frequency engineer on staff," continued Harris. "It [the final decision] is not based solely on that, but we take it into consideration."