THE PROCESS: WHAT HAPPENS NEXT?

T-Mobile representatives, the PTSA leadership, and the press variously have made reference to the process that must be followed before T-Mobile can erect the proposed cell tower. Yet, nobody has offered a clear description of the process, and the community is left in the dark about how it may offer its input and exercise its right to be heard.

• Quoting an e-mail from T-Mobile, the Whitman High website said that "[t]he Montgomery County Planning Board would need to approve the installation."  (Click this link to access the document.)
  
  
• A fact sheet distributed by T-Mobile at its November 17, 2009 presentation states: "T-Mobile may continue forward with the County process, which includes a technical review by the Montgomery County Tower Review Committee, and thereafter review by M-NCPPC professional staff and Planning Board."  (Click this link to access the fact sheet.)
  
  
• On December 2, 2009, purportedly reporting about T-Mobile's November 17 presentation, The Black and White, Whitman High's school newspaper, said: "[t]he final decision will be subject to the approval of the Montgomery County Tower Review Committee and superintendent Jerry Weast."  (Click this link to access the report.)
  
  
• A January 8, 2010 report on 9News Now stated: "If Whitman's PTSA approves the tower, it would then be up to Superintendent Jerry Weast to sign off on it."  (Click this link to access the report.)
  

Here is what we have found out so far about the process (please note that this not legal advice): 

1. Tower Committee Review and Recommendation

Under Montgomery County law (click here), a private telecommunications carrier intending to install a cell tower on public school property must first submit an application for review and recommendation by the Telecommunications Transmission Facilities Coordinating Group (Tower Committee). The Tower Committee maintains an informative website (click here), including a description of the coordination process (click here).

The Tower Committee consists of representatives from various County agencies that own or use public land, and thus may be interested in leasing land to cell phone companies for the installation of cell towers. The current members of the Tower Committee are:

Margie Williams, Chair (Department of Technology Services-Cable Office)
Steve Batterden (Department of Public Works and Transportation)
John Cuff (Office of Management and Budget)
Carlton Gilbert (Maryland-National Capital Parks and Planning Commission)
Dave Niblock (Department of Permitting Services)
Martin Rookard (Washington Suburban Sanitary Commission-Telecom Network Group)
Mary Pat Wilson (Montgomery County Public Schools-Department of Facilities Management)
Helen Mu (Department of Technology Services)

(Click this link for their contact information.)

Although each County agency retains the right to decide for itself whether or not to go forward with a proposed cell tower lease, the Tower Committee process is intended to ensure a uniform application process, coordinate the siting of cell towers, and coordinate on policy issues.

Montgomery County also has appointed a Tower Coordinator who receives cell tower applications and coordinates review by the Tower Committee. The Tower Coordinator reviews tower applications for site suitability and checks whether alternative sites exist for a proposed tower, or whether the proposed antennas could be placed on existing towers or other structures (so-called "co-location" options); determines the applicable zoning standards, in particular whether the application is "by right" or requires a "special exception;" and looks into the effect of the proposed tower on the land owning County agency and the potential impacts on the surrounding areas. On this basis, the Tower Coordinator makes a siting recommendation to the Tower Committee for its consideration.

Upon receipt of the Tower Coordinator's siting recommendation, the Tower Committee discusses the application in a public meeting and issues a recommendation to the Montgomery County Planning Board. The meeting dates (as well as agendas and minutes of previous meetings) are published on the Tower Committee's website. (Click this link for access to the website.)

According to the database maintained by the Tower Coordinator, T-Mobile submitted its application already in March 2009.  (Click this link for access to the database.)  The County informed us that the application was incomplete, because it lacked required technical information, and for this reason the Tower Coordinator has not yet issued a recommendation. In addition, the County informed us that the Tower Committee would not be addressing T-Mobile's application until after T-Mobile and Montgomery County Public Schools (MCPS) have completed obtaining and evaluating the public's input.

In its December 7, 2009 e-mail to the Whitman school community, the PTSA leadership emphasized that "The input from the school community is sought at an earlier stage of the process [than several years ago], and is taken very seriously at MCPS. Thus, no decisions have been made about the proposal by any entity, and no decisions will be made until after [the PTSA meeting now scheduled for February 16, 2010]." 

2. Special Exception or Mandatory Referral?

Under Section 59-A-6.12(a) and (d) of the Zoning Ordinance, installation of a private telecommunications antenna on publicly owned land requires a special exception unless the antenna is proposed to be "attached to an existing structure owned or operated by a County ... agency."  (Click this link to read the Zoning Ordinance.)

If a special exception is required, then the Montgomery County Planning Board reviews the application and makes a recommendation to the Board of Appeals. If a special exception is not required, then the Planning Board reviews the application and makes its recommendation to the County agency that owns the land (in this case: MCPS), which then makes the final decision on the application.

The Tower Committee's website (click here) explains the difference as follows:

Public Land - Private telecommunications antennas may be attached as a matter of right to an existing structure owned or operated by a county, bi-county, state or federal agency. If a carrier wishes to construct a new privately owned tower or monopole for the exclusive use of private telecommunications carriers on publicly owned land, a special exception is required. If the new tower or monopole will be used by a government agency, the application is submitted to the Planning Board rather than the Board of Appeals and the application goes through a public review process known as Mandatory Referral. Since this process is shorter (60 days maximum) and less costly than the special exception process, there is an incentive for applicants to work with government agencies to identify compatible uses with the government for facilities on public lands.

In 2007, the Tower Committee considered an application to install a cell tower at Watkins Mill High School that, just like T-Mobile's proposal for Whitman High School, also involved taking down a stadium light pole and erecting a cell tower in its place. Incidentally, T-Mobile then was represented by the same attorney, Sean Hughes, who is now representing T-Mobile in its Whitman High School application.  At its meeting on July 11, 2007, the Tower Committee determined (1) that the cell tower was being built for private use and (2) that the antennas were not being attached to an existing structure because the existing light pole was to be removed.  The Tower Committee concluded that, for these reasons, a special exception, rather than only a mandatory referral, was required.  (Click this link to access the minutes of the Tower Committee's July 11, 2007 meeting.)

At a recent meeting of the Tower Committee, on April 1, 2009, with T-Mobile's attorney, Sean Hughes, present, an attorney from the County Attorney's Office confirmed:

... if a State or County agency wanted to construct a monopole for its own purposes, the proposed monopole would be reviewed through the Mandatory Referral process.  T-Mobile, being a private entity, is subject to the County Zoning Code.  Thus, they could attach to a public agency facility as permitting in 59-A-6.12 of the Zoning Code, but construction of a private use facility on public property would require approval of a Special Exception.  

(Click this link to access the minutes of the Tower Committee's April 1, 2009 meeting.)

At T-Mobile's November 17, 2009 presentation at Whitman High School, T-Mobile's attorney, Sean Hughes, said that a special exception was not required for the proposed cell tower. The facts, however, do not support this statement:

1. Up until the light pole is taken down, it is an "existing structure," however, once the light pole is taken down, it is no longer in existence.
   
2. T-Mobile's cell tower is an entirely new structure that will not only contain all the antennas but will also have athletic lights attached to it.

For these reasons, given the law, a special exception is required here.

3. Planning Board

In any event, after the Planning Board receives the application, it is analyzed by the Department of Planning's Technical Staff. As recommended by the Montgomery County People's Counsel (click here), this is an opportunity for members of the public to voice their concerns and opinions. You may do so by contacting the lead reviewer or the zoning analyst assigned to the application, by writing them a letter, and/or by scheduling a meeting with them. Doing so will ensure that the Technical Staff will consider the public's views in preparing its Technical Staff Report to the Planning Board.

Upon receipt of the Technical Staff Report, the Planning Board will schedule a public hearing on the application. It posts the Technical Staff Report on its website approximately 10 days before the hearing. The hearing presents a formal opportunity for the public to present written and/or oral testimony. Note that there are strict time limits for oral testimony at the hearing.

Under the Mandatory Referral Process, the Planning Board then issues a recommendation to the land owning County agency, which then decides finally on the application.

If a special exception is required (and we believe it is in this case), the Planning Board's recommendation and the Technical Staff Report are then forwarded to the Office of Zoning and Administrative Hearings for a second public hearing before a Hearing Examiner. As described by the People's Counsel (click here), this hearing has no time limits; it involves witness testimony and cross-examination; and the participants may submit exhibits. After the hearing, the Hearing Examiner prepares a Report and Recommendations for the Board of Appeals.

4. Board of Appeals

 

Upon receipt of the Hearing Examiner's Report and Recommendations, the Board of Appeals holds a public work session at which it discusses the Hearing Examiner's Report and votes on the application. The Board of Appeals may also decide to request further information from the Hearing Examiner. The Board of Appeals may grant parties of record the opportunity to present oral argument on the basis of the Hearing Examiner's Report. 

5. Department of Permitting Services


T-Mobile's application requires a building permit regardless of whether the application goes through the Mandatory Referral or special exception process.