North Hill utility battle

Letter from Scott Davis:

7/20/09

Dear Mayor, Deputy Mayor, Council Members, and City Attorney:

When appearing before you on June 22, 2009, I made the case that AT&T was a less than good neighbor in our Pensacola community. I have heard that AT&T even has a nominal budget for their utility sites to pay for mitigation with landscaping, fencing, etc. Since AT&T does not proactively mitigate their sites unless complaints occur, my thesis that AT&T is not a good neighbor in our community is strengthened.

I think I did an adequate job of identifying part of the problem. However, I had, until recently, proceeded under the assumption that a “process of notification” between utility companies and Pensacola Historic Districts, while a courteous and wise business practice, was strictly voluntary. To the contrary, regarding AT&T, I have learned that the 1996 Telecom Act, the Land Development Code, and Pensacola’s City Ordinances already provide for a process of public review, notification, and comment. However, this already existing process is not being followed.

Now, some like to interpret the 1996 Telecom Act as meaning that States and Cities simply have “no say” in the face of telecommunication utility installation plans. In actual fact, the Telecom act makes provision for City management of rights of way: “Nothing in this section shall affect the ability of a State to impose … requirements necessary to … protect public safety and welfare” and “Nothing in this section affects the authority of a state or local government to manage the public rights-of-way” (1996 Telecom Act, Title 1, Subtitle A, Part II, Section 253, paragraphs b, c, and d). Hence, the City is fully within its rights to require telecoms to submit to a review process for installations within a Historic District.

What is more, construction permits are specifically required prior to utility installation (1996 Telecom Act, Section 10-5-2(6)). Regarding construction permits, even AT&T identified this requirement during their presentation on June 22.

Before we turn to the City of Pensacola’s Ordinances, please note that the City already has authority and purview under the existing Land Development Code (LDC). Frankly, the City requires no further ordinance as the LDC covers any “structure” or landscaping erected in any district subject to the Architectural Review Board (ARB). You, our City leaders, just need to clarify that understanding of the existing authority and direct City Staff to exercise it routinely.

Continuing, the City’s authority is further augmented: once a construction permit exists, then our City Code applies. Sec. 12-1-4 states “No structure shall be erected or reconstructed, nor shall any building or land be used in a manner which does not comply with all the district regulations established by this title for the district in which the building or land is located. … Nothing in this title shall be construed to authorize development that is inconsistent with the City’s Comprehensive Plan. …” (Ord. No. 39-92, § 1, 12-17-92; Ord. No. 11-94, § 1, 4-14-94; Ord. No. 13-06, § 1, 4-27-06). Further, the Comprehensive Plan provision of the City Code provides for Public participation through notice, the opportunity for the public to provide written comment, provisions to assure that the required public hearings are held, and provisions to assure the consideration of and response to public comments. (Sec. 12-0-8. Public participation, paragraphs a, b, c, d, and e).

Sec. 12-2-10 “Historic and preservation land use district” states “The regulations in this section shall be applicable to the Pensacola Historic District, the North Hill Preservation District and the Old East Hill Preservation District: HR-1, HR-2, HC-1, HC-2, PR-1AAA, PR-2, PC-1, OEHR-2, OEHC-1, OEHC-2 and OEHC-3.” Further, to quote paragraph (B)(1) “The North Hill preservation zoning districts are established to preserve the unique architecture and landscape character of the North Hill area, and to promote orderly redevelopment which complements and enhances the architecture of this area of the city.” Please note that “landscape” is specifically identified along with architecture as components of the North Hill area. Nowhere are rights-of-way or parks separated out as not being part of any Pensacola Historic District.

Continuing with Section 12-2-10; paragraph (4)(a) identifies a procedure for review: “All activities regulated by this subsection shall be subject to review and approval by the architectural review board as established in section 12-13-3.” Further, paragraph (c) discusses the submission of plans: “Every application for a building permit to erect, construct, demolish, renovate or alter an exterior of a building, sign or exterior site work (i.e., paving and landscaping), located or to be located in the North Hill Preservation District, shall be accompanied with plans for the proposed work pursuant to section 12-2-10(A)(4)(c) to (e), applicable to the Historic District.”

The above citations were behind questions #7 and #8 in my June 29th letter to AT&T’s Mr. Anthony Confusione. I quote: “(7) Since the Telecom Act of 1996 specifically preserves local public welfare regulations from preemption, how did AT&T comply with the City’s district regulations in the Historic District, Old East Hill and North Hill Districts without submitting siting and construction plans for approval of the Architectural Review Board (ARB)?” and “(8) How was public participation provided as the Comprehensive Plan Ordinance requires, without submitting siting and construction plans for approval by the Architectural review Board (ARB)?”

In regards to the AT&T utility cabinet installations at Alabama Square Park, It appears that either AT&T is disregarding our City Code or our City Staff is misinforming utility companies of the full permitting procedure. In either case, we have a code violation. If a construction permit was filed by AT&T, then why did not the full District Review process occur (homeowner notification and a chance to comment via the ARB)? If a construction permit was somehow not filed to avoid this process, then the AT&T utility cabinets are an illegal installation and should be immediately removed.

Why has not Code Enforcement taken action on this?

Pensacola’s Architectural Review Board is made up of seven well qualified individuals. If our City will employ the ARB as specified in our Land Development Code and City Ordinances for our entire Historic Districts to include rights of way and parks, we will avoid what is becoming an annual collision between the City, utilities, and Pensacola’s Historic Districts. The benefits are obvious: (1) increased public participation in a sanctioned City review process, (2) improved public perception that our utility companies are not interested in public input, and (3) increased time for our City Council to devote to more important issues than where a utility unit should be placed in a Historic District or how mitigated. A final benefit is that one architectural standard would be applied to an entire Historic District as is common elsewhere in the United States.

The ARB process is the answer to our ongoing collisions. This process would, as required by law, ensure the opportunity for public participation, and protect both the utilities and our City from liability. We will pursue this issue until utility companies fully comply with our City Code. And, until AT&T appears before the ARB with their site plans to include effective mitigation, we will not rest.

Thank you for your service to our City,

Scott O. Davis

Board Member, North Hill Preservation association (NHPA)