Overland Park council frets over new state law that strips cities of some ability to restrict wireless towers placement


By Jerry LaMartina

Overland Park residents could theoretically find wireless telecommunications towers and other related equipment in or near their front yards because of a state law that will go into effect on Oct. 1.

The Overland Park City Council on Monday night considered an amended city ordinance in response to the state law and to existing Federal Communications Commission rules in an effort to limit wireless service providers’ leeway to put their equipment within the city’s right of way. The council expects to vote on the amended ordinance at its Sept. 19 meeting.

The proposed ordinance changes came in response to the passages of S-Sub 2131, a bill that gives wireless carriers and infrastructure providers wireless poles and other equipment within city rights-of-way — generally, the 11 feet of property abutting a street.

Before the regular council meeting, a council committee discussed the city’s amended ordinance in light of the state and federal laws.

“If I’m a resident, the way this is written, a provider like Verizon or AT&T … can come and place equipment, as well as a tower, and an unlimited amount of equipment, in my front yard, as long as it’s within the city’s right of way,” Ward 2 Councilman Paul Lyons said. “Is that correct?”

The state statute will allow wireless service providers to do that, Senior Assistant City Attorney Steve Horner said.

“What we have tried to do with our language, which is why we are strongly advocating that you approve these (proposed city ordinance changes), is we have tried to restrict that as much as possible,” Horner said. “So what we have provided you is much better than not doing anything, because if we don’t do anything, the statute’s going to go into effect Oct. 1 and we will have applications for 120-foot poles from one particular provider on Oct. 1, in right of way.”

Ward 3 Councilman David White said Tuesday morning that “it’s possible but not probable” that a wireless service provider would actually put a monopole in a residential front yard because “they’d have to go 18 feet underground, and they probably wouldn’t do that in somebody’s front yard.”

White said during Monday night’s committee meeting that when ordinance amendments were made in 2008, “citizens still had a voice” and “could still raise objections.”

“Under this one, theoretically – I can just see the headlines now: ‘You can put a monopole in front of my house, as long as if it falls over it doesn’t hit my house.’ What recourse as a citizen do I have to object to that if the monopole is in the city’s right of way? Do they have any recourse?”

Horner said that White’s question was “a difficult question to answer because the (state) statute has really buttoned things up tight and tied our hands somewhat behind our backs on that.”

“There is a provision in the statute that says the city shall consider the input from the adjacent property owners, but we’re still restricted in terms of (wireless service providers having) the statutory right to be there,” Horner said.

City Manager Bill Ebel said that it was “really marginal, whatever their recourse is.”

“The only thing that we’ve done additionally is we’ve included a notification requirement that was not required by statute … so that at least the utilities and the companies have a requirement under our city ordinance to notify the surrounding property owners, which they would not have to do unless we put it in there,” Ebel said.

Horner said the new state statute will prohibit the city from allowing multiple wireless service providers to use the same poles (known as co-location) and will prohibit the city from expressing a preference of industrial or residential areas for tower placement.

The amended city ordinance proposes maintaining the current 150-foot height restriction for wireless towers not in the city’s right of way. Within the city’s right of way, towers would be limited to 20 feet on residential streets, 40 feet on collector streets and 50 feet on thoroughfares.

During the City Council’s regular meeting, Lyons said he wanted to comment on “how much I feel that this particular law we’re trying to address here is just so outrageous, the law the state legislature passed this last legislative session.”

“It effectively means that not only has the city lost a substantial amount of control in terms of being able to manage the placement of wireless communications equipment throughout the city, (but) it also takes away the rights of our citizens in terms of being able to keep that equipment out of their front yards,” Lyons said.

The state legislature, he said, “needs to go back and revisit this and essentially undo this nonsense and provide the ability for cities and citizens to have at least some say over whether that kind of equipment is placed in or around their (property).”

Donation_TagIf you appreciate our coverage of community schools, government, business and organizations, we hope you’ll consider helping keep the site running by making a donation today.

Even a small contribution goes a long way toward helping us bring you the news you can’t find anywhere else.