By Rodd Cayton
On the advice of an attorney — and against the wishes of dozens of residents who packed their chamber — Sandoval County Commissioners approved an application from parties seeking to erect a communications tower in Placitas.
The planning and zoning commission in May denied the conditional use permit that would have allowed construction of the 75-foot Verizon Wireless tower. Reasons for the denial included “undisputed and uncured misrepresentations and deficiencies in the applicant’s application,” no evidence of an actual need for the tower, and the esthetics of the proposed tower, described as inconsistent with the surrounding area, according to Doraida Arias, the county’s assistant director of planning and zoning.
Scott Quinn, representing Sun State Tower, Verizon and property owner Racquel Huslig, attempted to rebut each of those points, and a group of residents, known as parties of record, urged commissioners to uphold the denial, with each addressing a particular issue.
Quinn said county planning staff reviewed 15 different documents that were submitted as part of the application. Regarding a statement by the parties of record that the applicants didn’t adequately consider other locations, he said an attempt to place the tower on county property was unsuccessful because the county did not want to enter an agreement for such a location. Steve Kennedy, a design consulting engineer hired by the applicant, said the tower would provide additional coverage along State Route 165 and in areas where complaints of poor coverage have been brought to the New Mexico Public Regulation Commission. Kennedy showed maps that indicated the area around the proposed tower is lacking service compared to nearby areas along I-25.
Josh Leonard, a consultant for the applicant, told commissioners the Federal Communications Act of 1996 bars state and local governments from enacting zoning rules that “prohibit or have the effect of prohibiting provision of personal wireless services.” He said federal courts have applied two standards in determining whether the denial of an application would have the effect of prohibiting those services. The first is whether a significant gap in wireless service coverage exists, and the proposed site will fill that gap. The newer standard, Leonard said, is simply whether denial of an application for a wireless telecommunications would materially inhibit a carrier’s ability to provide wireless service to its subscribers’ custody. “Our application meets both federal standards, and as a result, is entitled to approval,” he said.
Jonathan Kramer, an attorney assisting the county in the matter, confirmed that assessment and told commissioners the property’s existing zoning would allow a cell tower.
Lucinda Fairfield, speaking in opposition to the tower, said each of the eight conclusions of law listed by the planning and zoning commission was an independent basis for denial. “To reverse this denial, you would have to overturn all eight conclusions of law,” she told commissioners. “Even if one of the eight survives, the denial still stands.” She said the record holds more than 280 letters and emails in opposition and only seven in support, while none of the roughly 40 residents who testified under oath spoke in favor of the project.
Opponent Sue Rodinsky said that in an area of single-story homes, a proposed “concealment shroud” designed to blend in would enlarge the tower, rather than camouflage it.
In the applicant’s rebuttal after opponents spoke, Leonard said the county’s comprehensive zoning ordinance required the applicant to meet six standards; he said six of the eight reasons the planning and zoning commission gave for denial did not address any of those requirements. “That means the planning and zoning commission erred as a matter of law by holding the application to standards that are not required by county code,” he said, adding that the commission’s written decision “didn’t identify what alleged misrepresentations and deficiencies exist in the application, which makes it difficult to respond to this allegation.”
At the urging of commissioners, the applicant agreed to take in public input concerning the design of the tower.
Commissioner Katherine Bruch cast the “no” vote.
Opponents spent much of the hearing providing supportive gestures to speakers on their side, and shaking their heads or chuckling during comments by the applicant’s team, causing Chair Jordan Juarez to lightly tap his gavel. After the hearing adjourned one man in an overflow area outside the commission chamber loudly booed.
Barbara Burzillo, another opposing speaker, said she was disappointed with the outcome, and that the group would likely appeal to District Court.