THE REINVENTION OF THE CELL TOWER

On December 13, 2015, after 12 months of silence, Dynamic Towers, Inc. (DTI) filed a revised application for construction of the 120 foot high cell tower at the Sailfish Marina.  Like Sleeping Beauty, the cell tower project awakens.

Background

On December 15, 2015 after five postponements, the Martin County Board of County Commissioners (BOCC) decided to send the second application for a cell tower back to the Local Planning Agency (LPA) because of a “scriveners” error in the newspaper announcement regarding the size of the proposed re-zoning (postage stamp zoning).  See earlier posts on this zoning tactic. The postage-stamp zoning has gone away so this makes the return to the LPA based on zoning a bit Kafkaesque.

The BOCC gave DTI one year to come back to the LPA for a new hearing.  This is not in the record – it is the interpretation of the (now former) County Attorney Michael Durham, in a separate memo that he filed with the BOCC on March 31, 2016.  He determined that if the applicant came back with a new application by Dec 15, 2016, then it could proceed back thru the process, because of the “scriveners error”.

The Revised Application

DTI filed a new application on Dec 13, 2016.   You can see it here (warning – very large file).

This new application is very different from the original but retains some important similarities

(1)          The same tower design is proposed to be constructed in same location.

(2)          The tower will NOT initially be a cell phone tower.  AT&T, who said it needed the tower for cell phone coverage has severed its business connections with DTI, and DTI does not have any cell phone company lined up as a lead tenant on the tower. Therefore, there is no longer any demonstration of need for a tower as required by Martin County rules for cell phone towers.

(3)          The tower will be used to provide “wireless internet service” to local residents. DTI claims that Comcast, AT&T, DISH, and DIRECT-TV do not provide adequate Internet Service (ISP) and it will meet this need from antennas on this tower.

(4)          The tower will also be used to provide important emergency 911 service for Martin County residents and for local emergency service providers.

(5)          The tower will also be used to provide communications for Sailfish Marina.

(6)          Eventually, the tower will be used for cell phone service, and will be integrated into “Firstnet”, which is a proposed nationwide network of emergency communications facilities sponsored by Federal Government.

(8)          The request for re-zoning the "postage stamp" has been withdrawn.  No explanation is provided in the application other than “county staff says this is not needed”.

Schedule

We have already engaged the County staff again.  We have asked them about the schedule, and they said that they plan to issue their staff report sometime in the next two weeks.  A meeting with the LPA will be scheduled once the staff report has been issued. The County rules for notification of the neighbors have changed since 2015, so many more neighbors should be getting letters notifying them about the tower, their entitlement to intervene in the hearing, and the meeting date and time.  However, because this is NOT an application to construct a tower for cell phone service, the County is not bound by the FCC rules regarding the time it can take to review the application.

We will be providing additional details about our concerns and the issues in new blog postings. Please review earlier postings for detailed information about the project process to date.

Stay tuned and stay engaged.  We have done a lot of research over the past year.  There are many issues that the developer needs to address before the County can approve this project, if they follow all of the Federal, State, and Local regulations.  To date, they have not followed the rules, but we intend to point them out to all interested parties. 

BOCC DECIDES NOT TO DECIDE

Yesterday's hearing before the Board of County Commissioners went pretty much as expected. Martin County staff recommended that the entire application package go back to the Local Planning Agency (LPA) on a housekeeping matter.

As I understood the explanation by the Senior Assistant County Attorney for Litigation yesterday: Martin County staff is tasked with sending out the public notice to residents and the newspaper when a proposed change to zoning is in the works. The Staff made a "scriveners error" and used numbers on a drawing. Apparently this is a legal issue. They should have used a different number, presumably the correct one lodged in some other location or document.

At the LPA meeting on March 5, 2015, the 586 sq. ft number was cited in the hearing and then County Planner Deanna Freeman immediately set the record straight to reflect the 640 sq ft number. She pulled out land drawings and oriented the LPA so that there would be no confusion about the square footage that was being designated as the "postage stamp". Ten months later, this correction has just come to light as being insufficient.

In totality, the issue to the County is over 54 square feet of Sailfish Marina specifically 586 sq. ft. vs 640 sq. ft. Trivial. The issue for the residents is "bad zoning, spot zoning, illegal zoning, what the County Staff call Postage Stamp Zoning." Does 54 square feet warrant a whole new hearing back to the LPA when it seems like different numbers were in the application package?

The Senior Assistant Attorney for Litigation said that the hearing should not go forward due to the error in the public notice. The BOCC took her advice and said that the LPA must hear the application again.

On a very positive note, opponents to the cell tower at Sailfish Marina turned out in force. They definitely made their objections known to the BOCC by coming to the meeting, many spoke out against the tower, many wore red so their position against the tower was clear. Thank you all for coming out and for your continued support.

Stay Tuned.
I will post updates as they happen.

BOCC HEARING ON TOWER FOR TUESDAY, DECEMBER 15

At the September 22nd meeting of the Board of County Commissioners, opponents to the proposed cell tower at Sailfish Marina were promised a hearing for a "date certain" of December 15 and that the application to "postage stamp" zone Sailfish Marina and construct a 120 foot cell tower on the site would be heard on its merits.

Well guess what? The County staff is again recommending a postponement.

Now the Staff want the application to go all the way back to the Local Planning Agency for some housekeeping issues. Nothing substantial.

Opponents to the cell tower should come to the Board of County Commissioners meeting on Tuesday, December 15 at 9 AM. The meeting will be held at the Martin County Administrative Center located at 2401 SE Monterey Road

There is lots of parking next door at the Blake Library

Shortly after the meeting is called to order each member of the Public is permitted to speak for 3 minutes. You have to fill out a form that you wish to speak and hand it in to the uniformed officer. Please let the Commissioners know you want a hearing and not another postponement. Tell them you do not want this UNSAFE tower in a residential community, at the edge of the Manatee Pocket.

The actual hearing is set for 4 PM if you wish to attend both times.

Please wear something red to identify yourself as part of the opposition.

MARTIN COUNTY FIRE PREVENTION PART 5

We think we have giver Martin County plenty of time to resolve the issue of inadequate automatic fire suppression at Sailfish Marina.

However according to Mr. Doug Killane who was interviewed by a local resident the only progress made so far is that he as Fire Inspector has met with the owners of Sailfish Marina.

To our knowledge, the marina has not been fined for such an egregious infraction. Nor is there a schedule to fix the problem or shut down the marina.

Martin County residents need their fire protection services to serve all the population not just one business owner.

MARTIN COUNTY STANDS TO LOSE MUCH BY IMPRUDENT FLOODPLAIN DEVELOPMENT

The proposed 120 ft high cell phone tower at Sailfish Marina would be located in a Class AE floodplain, and would be about 6 feet away from a large in-out boat storage building that contains about 200 boats in racks. The electronic equipment for the tower would be located within the boat building. The boat storage building was built so long ago that the County has no records of its construction, but it was damaged during Hurricanes Jeanne, Frances, and Wilma, and one wall was substantially re-built after Wilma.  We have informed local officials that the tower is a hazard to the boat building, where the boats are required to be stored with full fuel tanks.  There is no automatic fire suppression in the building. The applicant himself stated at the Local Planning Agency hearing of March 5, 2015 that if the tower should fail, it would only hit the boat shed.

Why does the County seem to be determined to go ahead with this imprudent floodplain development by giving the tower developer zoning and planning permission, and then a construction permit?

As we understand the Local Mitigation Strategy for Martin County, the County is supposed to mitigate hazards, and is especially encouraged to mitigate them by not creating new ones.  Isn't locating a cell tower next to a boat storage building without automatic fire suppression in a hurricane evacuation zone that is also a floodplain just creating a new hazard that will become a disaster during the next hurricane that strikes this area? And better yet, the tower is not designed for flood loads, an issue that will be discussed in future posts.

Responsible governments are charged with the application of mitigation principles at all stages of a project's review.  The FEMA Flood Protection program regulations (44 CFR 59.22(8) and 44 CFR 60.1 (c) ) say that communities are required to "recognize and duly evaluate flood, mudslide (i.e., mudflow) and/or flood-related erosion hazards in all official actions in the areas having special flood, mudslide (i.e., mudflow) and/or flood-related erosion hazards " and "must take into account flood, mudslide (i.e., mudflow) and flood-related erosion hazards, to the extent that they are known, in all official actions relating to land management and use".  

Martin County staff have taken the position that these issues do not need to be evaluated until the actual building permit for the project is processed, and that they do not have to be considered during the zoning and development approval process, where the Board of County Commissioners vote.  Martin County residents should be very concerned by this practice, considering the risk that this facility presents to the residential neighborhoods that surround the proposed tower, which would be about 25 feet from the waters of the Manatee Pocket.

One casualty of such imprudent floodplain development management could be the County's participation in National Flood Insurance Program (NFIP). Martin County's homeowners and prospective home buyers need to be able to buy flood insurance at reasonable rates. Martin County's standing in the NFIP could be jeopardized. The NFIP will be discussed in future posts.

FIRE PREVENTION IN MARTIN COUNTY PART 4

Before reading this post please review the previous posts on Fire Prevention in Martin County by clicking on Part 1, Part 2, and Part 3.

All of Martin County should fear a fire of catastrophic proportions generated by a 120 ft Cell Tower at Sailfish Marina.

Plans for the tower call for the hollow tower-base to be constructed a few feet away from one of the two large in-and-out dry-stack boat storage buildings at the marina. The second building is less than 50 feet away. The electronic equipment for the tower will actually be housed inside one of the storage buildings. This building is part of the tower project.

A request to the County for extant building records revealed that the County could not find or no longer has a copy of the original permit for the building. It is thought that the storage building was built about 1971. It has been damaged several times over the years by hurricanes and hail storms. Some repairs were made via building permit, some were not, so there is not a complete history of the buildings.

The buildings house some 200 boats with their engines and fuel tanks, stacked on racks that are up to 3-high. A conservative estimate would put 20,000 gals. of fuel stored on those boats.  There is no automatic fire suppression system in the buildings as required by the Florida State fire code.

Nine years ago the marina owner acknowledged that automatic fire suppression was lacking and made a written commitment to Fire Prevention Chief  Pasqualone to install the system "in the next 2-3 years". To date that has not been accomplished.

When the County performed its fire review of  the tower application, the reviewer said that only a 10 lb fire extinguisher and a Knox Box was required. When some of the intervenors met with the County reviewers for the application, they were told that this was a mistake and the fire extinguisher requirement was changed to 40 lb. Here is the intended purpose of a fire extinguisher (wiki:)

A fire extinguisher is an active fire protection device used to extinguish or control small fires, often in emergency situations. It is not intended for use on an out-of-control fire, such as one which has reached the ceiling, endangers the user (i.e., no escape route, smoke, explosion hazard, etc.), or otherwise requires the expertise of a fire department. Typically, a fire extinguisher consists of a hand-held cylindrical pressure vessel containing an agent which can be discharged to extinguish a fire.

Martin County residents, do you think this is sufficient fire protection for a 120 ft. cell tower and a boat storage building housing perhaps 20,000 gals. of fuel?

Why was this application permitted to go forward when the installation of an automatic fire suppression system in the boat storage building intended to house all the electronics for the tower is an outstanding deficiency in the County's records?

Fire fighting equipment can approach the marina from both directions of St. Lucie Blvd., but a fire at the tower itself, or a fire in the electronic equipment inside the building, could only be accessed by going through the boat storage building. Boats stored on trailers and posts block access to the proposed tower site. Why was this application permitted to go forward when the only access for a fire truck to get to a fire is through the boat storage building which has no automatic fire suppression and stores 20,000 gals of fuel?

A catastrophic fire in the boat storage buildings would not only the require the evacuation of nearby residents but perhaps people enjoying Sandsprit Park. In order to exit Sandsprit Park people would be required to actually drive towards the fire to flee it!

Building this tower at this location is a risk that no one can afford to take.

BOCC POSTPONES CELL TOWER HEARING AGAIN

The September 22 meeting of the BOCC went pretty much as expected for the first 5 minutes. The Board approved a continuation of the Tower hearing until Nov. 24, 2015 and moved on to public comments. After intervenors objected to the postponement during the 3 minutes they were permitted to speak during the public comments, the Board reopened the discussion for a continuation. 

The applicant got the continuation until December 15, 2015. The November 24th date was quite objectionable as it is just 2 days before Thanksgiving. Only the attorneys are permitted to select dates for rescheduling the hearing. Rarely are the intervenors even notified by email that a postponement is even in the mix.

The BOCC did hear just a few of the many issues that have yet to be raised about the application and project. Those issues will be posted here on the blog every few days. They will astound you.

The County staff said that the applicant is thinking that he can abandon the long process taken so far and just ask for a building permit. The reasoning is that he would be asking for a replacement tower. There is a provision in the Florida code that says that wireless companies don't have to jump through all the hoops if they just replace one tower with another. 

This is a very reasonable law, but it is not at all clear that they can do it in this case, because (1) there is no building permit for the existing tower, (2) the tower has not been registered by the FCC, even though there has been a requirement to do so since 1996,  (3) they would have to dig up the entire foundation for the old tower to install a new one,  (4) the existing tower is owned by Mr. Bayley, while the new one would be owned by DTI, and (5) the current application for construction of the proposed tower states explicitly that neither  Mr. Bayley nor DTI owns any wireless telecommunications towers in Martin County.

Commissioner Scott is to be commended for realizing that the applicant is now trying to move the tower project to a process that would not be voted on by the BOCC and the invervenors would be denied due process. Her insistence on a date certain hearing of December 15, 2015 is very much appreciated. Thank you Commissioner Scott.

The postponement made the front page of the Stuart News today.