Crown Castle attorney tells council it has no authority to enforce its guidelines
(April 2, 2021) Crown Castle’s attempts to erect six 5G cell towers in Ocean City were stalled on Tuesday, when the majority of the City Council members refused to vote on the cell tower company’s proposal following their receipt of a last-minute letter from one of its attorneys.
In the letter, the company’s counsel for this region, Beverly Ali, all but said federal law and FCC rules required the council to give Crown Castle what it wanted.
She also contended that city guidelines to preserve the open sky in neighborhoods where all other utilities are buried nevertheless constituted a prohibition of service to Crown Castle contrary to the Telecommunications Act.
Representatives from the company met with council members to discuss the placement of six cell phone towers, mainly in residential neighborhoods.
Three of the towers were to be placed in R1 neighborhoods – at 178 Old Landing Road, 401 Bering Road, and 1909 Marlin Drive – while the other three were to be located in MH zones in Montego Bay – at 167 S. Ocean Drive, 243 S. Ocean Drive, and 354 S. Ocean Drive.
Crown Castle Government Relations Specialist Trey Spear told council that he originally proposed to erect nine towers in Montego Bay, but that was whittled down to three towers.
The remaining three towers, he said, are in high need areas with little cell phone connectivity, specifically in the southwest corner of the development.
The locations were selected after a two-year study using RF data and heat detection found there to be an increase in user hours from 5,000 to 65,000.
The increase in user hours was credited to using their cellphones more and using the internet more for streaming services.
“As more devices are added ... there will be further drain,” Spear said. “We need to think five and 10 years into the future.”
The original intention of the meeting, Spear noted, was to review the locations and designs for the poles. Some of the designs he presented involved creating bump outs in the road to allow space for the 20-foot-tall towers.
The poles could also have decorative bases that house the equipment, along with lighting at the top to match the aesthetics of streetlights in the area.
The towers work on line-of-sight, which means the towers all have to be close to the same height for the signal to be relayed between them.
In Montego Bay, there is a height restriction of 15 feet for poles, and according to Crown Castle, it should work, but it will be close. Ideally, the poles should all be 20 feet to work optimally.
While height restrictions could hinder efforts, the tower company and its competitors have the ability to place their equipment anywhere they want because of a ruling from the Ninth Circuit Court in the case of the City of Portland versus the FCC.
In that case, the court ruled that municipalities do not have the ability to deny 5G towers when it comes to putting them in the local government’s management of the right-of way for utilities like broadband service.
The court’s decision certainly came into play when City Council members were discussing the proposal with Spear.
“We’re here to work with the Town of Ocean City – we’re not here to ramrod a solution,” Spear said. “We’re just trying to get three sites in Montego Bay where there is an extreme need.”
Before the discussion took place, several residents of Montego Bay spoke during the public session, either for or against the measures.
Holly Donovan said she was concerned about the aesthetics of the poles, and Paul St. Andre questioned the benefits of the poles.
“I don’t like what’s going on,” he said. “I’m an old man. I’m 83 years old. I don’t see why we have all this stuff going on. Our community is perfectly safe right now.”
Montego Bay resident Dennis Moore, on the other hand, favored the tower installations, saying he welcomed high speed internet and an alternative to Verizon and Comcast.
Councilman Tony DeLuca said after getting so many comments from the residents of Montego Bay, in writing and in person, it would be better to vote on the six towers by zoning, so all three R1 tower proposals would be voted on separate from the MH zone towers.
He then moved to deny the three locations in Montego Bay because of the “unique character” of the development, a 15-foot height restriction, and the fact that there were no above-ground utilities.
Of the six councilmen in attendance – DeLuca, Frank Knight, Peter Buas, John Gehrig, Matt James, and Mark Paddack – only the latter voted against DeLuca’s motion.
Paddack said based on the ruling from the Ninth Circuit Court, he could not vote against the installation of the towers.
“It’s city property,” he said. “We, as elected officials ... are allowed to have a voice, but not necessarily a say in this process.”
Paddack then moved to approve the other three towers, but it was then noted by Gehrig that he was not ready to vote on the matter until he had time to review a letter from Crown Castle’s attorney.
When it came to a vote on Paddack’s motion, he could not get a second, and it died.
What was clear among the board members was once these poles are allowed to go up, there is no stopping more from going up.
“These poles are like weeds,” Gehrig said. “They’re just going to pop up everywhere, but you can’t pull them.”