Anna Maria cell tower ordinance: May we or shall we?
Cellular phone service plans can be bought as cheaply as $30 a month and service usually begins the same day.
In Anna Maria, it's cost the city nearly $54,000 to produce a cell tower ordinance and it's still not ready after nearly two years of debate on the issue.
Squabbling over the language in the proposed wireless communications facilities ordinance continued at the Oct. 9 city commission workshop with City Attorney Jim Dye and Commissioner Duke Miller in favor of using the words "shall" and "will" in the ordinance, while wireless communications consultant Ted Kreines wants the city to say "may" or "should" to cell tower permit applicants.
Changes to the cell tower ordinance language have been going back and forth between the commission and Kreines for the past five months and Kreines believes the city should not be restrictive in its language.
As Kreines said in his May 2002 workshop for the city on wireless communications, "prohibit nothing," but offer applicants the "stick and carrot" by making certain locations restrictive for a cell tower.
According to his latest memo, Kreines hasn't wavered in his belief.
What bothers Dye in the current draft, however, is that there is no "guidance" when Kreines replaces "shall" with "may."
It's like saying a motorist "may" travel at a maximum speed of 35 miles per hour, but he or she is not required to do so, he observed.
Kreines believes the wording of the proposed ordinance makes it "arbitrary" and Dye disagreed.
In the legal sense, he said, the Kreines language makes the ordinance unclear. "His view of arbitrary is completely different than mine," he said.
"If [the ordinance] is not mandatory, how can we stop them from building at a church?" Dye asked.
The ordinance that says an applicant for a wireless facility has to do something, Dye said, is more defensible in court than one that says the applicant "shall" or "should," as Kreines wants.
Miller said the city should stick with what Dye wants, not Kreines.
"I'm hearing our attorney and [city commissioner Chuck] Webb say make this ordinance mandatory" to the applicant.
Exactly, said Dye. "I'm trained to look at the worst case scenario if I have to defend this in court." A "mandatory" ordinance is more defensible than one that is "directory" in nature, he said.
That's great, said Commissioner Tom Aposporos.
The commission is back to square one after spending nearly 17 months and $54,000 on consulting fees and other expenses to produce a wireless-communications ordinance, he said.
The second reading and public hearing on the cell tower ordinance is scheduled for Oct. 23 and the commission still can't agree on the language.
The moratorium on cell tower construction expires Nov. 14 and city elections are Nov. 4. If the ordinance does not pass, a new commission will be immediately faced with the issue of extending the moratorium.
So, where do we go from here? Aposporos asked.
"This is not the first time these differences have come up," he noted. In fact, he added, "I've watched this tug of war for the past four months" with no resolution.
There is a philosophical difference here between Kreines and Dye and he asked the two get together for "one last effort" to reach a solution and come back with an agreed upon ordinance.
If they can't reach an agreement, then what was the point of hiring Kreines and paying him to write the ordinance? he asked.
"Let's get this resolved one way or the other," Aposporos said, noting that more discussions between Dye and Kreines will cost the city still more money.
Commissioners John Quam and Linda Cramer were in favor of using the Kreines language in the ordinance as Kreines has written several wireless communications ordinances, including one for Alachua County (Gainesville). Webb was absent from the meeting.
Eventually, commissioners agreed with Aposporos to have Dye contact Kreines for yet another, possibly final attempt to reach agreement on language in the ordinance.
Dye said he would have a memo on his discussions with Kreines to commissioners well before the Oct. 23 meeting.
Cell tower timeline
- Oct. 2001: Tech Tower Inc. proposes to build a cell tower atop Roser Memorial Community Church. Commission seeks consultant to advise city on cell tower construction and new ordinance.
- May 2002: Ted Kreines gives day-long workshop to city commissioners and public on wireless communications facilities (don't call them cell towers) and the federal law requiring cities to allow such construction. Kreines tells city to "prohibit nothing" in an ordinance, but offer applicants the "stick and carrot" to place cell towers in locations preferred by the city.
- May 2002: Kreines hired by city to prepare a wireless communications master plan for $25,000.
- September 2002: Kreines delivers wireless communications master plan.
- January 2003: Commission elects to have City Attorney Jim Dye write wireless ordinance in conjunction with the planning and zoning board as Dye's cost will be cheaper than Kreines.
- May 2003: Dye says he's having trouble writing an ordinance that Kreines agrees with. Commission decides to have Kreines write the ordinance. Kreines gives another workshop to city commission and public.
- July 2003: Commission, Dye review first draft of Kreines ordinance, make changes and suggestions to Kreines.
- August 2003: Kreines returns suggestions and changes to the commission with his own suggestions and changes.
- September 2003: Commission and Dye return changes to the changes to the changes to Kreines
- October 2003: Kreines returns changes to the changes to the changes to the changes to commission and Dye.
- October 2003: Commission impasse.
Wireless costs to date:
o Wireless planning workshop $3,276.
o Wireless Master Plan $26,066.
o Kreines comments and changes $11,804.
o Dye's draft ordinance $7,100.
o Document prep and other fees $5,650.