Email sent to interim Pensacola City Manager Al Coby:
Dear Mr. Coby:
Thank you for responding. It is my understanding that a meeting with myself, Ms. BessAnn Watson, Pres. of the NHPA, Mr. Hutchinson and a Gulf Power attorney and someone from your office, and presumably Mr. Wells is to be scheduled for 2:00 p.m. tomorrow at City Hall. I look forward to a productive meeting, and appreciate yours and Mr. Wells’ detailed responses and continued review by the City Staff of these issues.
The issue is larger than merely this line route. If Gulf Power is not subjected to the regulations that apply, then the City’s land use enforcement regime will be in serious jeopardy of being impaired by a (by-now notorious) selective enforcement precedent. The restrictions applicable to the Historic District and protecting the City’s historic and archaeological fabric are similar to the North Hill Preservation District regulations. If a hundred foot tower (with a twelve to twenty foot deep foundation) can be built three feet from a property that cannot build a simple lot line fence without approval, voluntary compliance will make less sense to affected property owners, and with some cause. The City’s enforcement costs will rise markedly — and if laws are not followed by the City they may not ultimately remain enforceable by the City, which the NHPA would very much like to avoid.
Toward that end in assisting your staff to get to the appropriate regulation at hand, you can see from the text of the Transmission Line Siting Act statute, unless TLSA certification applies, which is only for regional (i.e – multi-jurisidictional) transmission lines, the exemption provide in that Act from local ordinances does not apply, and thus Gulf Power is not exempt from City in the siting of these transmission lines. Even the City is bound to follow its own Land Development Code, and Gulf Power is not exempt in this regard.
Turning to the Code, if I may assist, I suggest that City staff focus their review on the following provisions:
1. Utility poles and transmission towers are explicitly addressed in the Code as “structures” : §12-14-1 defines: “Structure means anything constructed or erected on a fixed location on the ground, or attached to something having a fixed location on the ground, including but not limited to, a building, mobile home, wall, fence, tower, smokestack, utility pole, overhead transmission line or sign. ”
2. “Land Development Code §12-1-4, Buildings to Conform Regulations. “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.
The fact that transmission line poles are not mentioned specifically in what district regulations apply to them as such does not take them outside of the requirements of “structures” requiring compliance. Nor is it necessary to have a particular reference to “transmission lines” as such apply the Code, which applies to all structures, and particular requirements on other designated structures may apply if they are related in use:
3. §12-1-5 Interpretation, Conflicts, and Omissions. “In interpreting and applying the provisions of this title, the minimum requirements for the promotion of the public health safety and general welfare of the community shall be adhered to…. In the event there is not a particular use listed anywhere in this title that corresponds with a proposed use, then it shall be interpreted that the use described in this title having the most similar characteristics as the use in question shall apply.”
4. “Land use means the specific purpose for which land or a building is designated, arranged, intended, or for which it is or may be occupied or maintained.” §12-14-1.
5. The Interstate Corridor (IC) zoning district specifically allows as a permitted use “public utilities.” The residential districts do not. Transmission lines (115kV or greater) which supply substations are fairly within the definition of “public utilities.” As such, transmission lines, which for safety reasons must be of height greater than 75 feet, are not permitted uses in residential areas.
6. As a structure, transmission line towers must meet all district regulations not specifically limited one use or structure – including, presumably the applicable aspects of development plan approval under §12-2-81. “All development described herein shall submit development plans which comply with requirements established (herein)…” “Development or development activity means: (a) The construction, installation, alteration, or removal of a structure, …” §12-14-1
” .
As to specific references that may apply under the interpretive directive of the Code in §12-1-5, some of the following may be of use to review
If transmission lines are treated as “public” structures then the height limitation on “public” structures in residential areas is 75 feet. §12-2-39(a)
Mr. Wells made an early suggestion that transmission lines might be treated like wireless “communications towers.” That would require a conditional use in residential areas. See §§12-2-44; 12-2-79. But transmission lines do not fit the definition of “communications towers,” which are defined particularly in §12-14-1. Similarly, the relaxation on height limitations in 12-2-39 ( c) is for listed rooftop appurtenances or structures that are typical of occupied structures.
While the definition of “communications tower” does not apply, one might follow Mr. Wells’ lead and construe the “private radio antenna” to be similar and apply that regulation instead, in which case the height limitation is also 75 feet. This might fit consistently with utility poles which are less than 75 feet in height and carrying neighborhood distribution lines (7200 V) and service lines (240V). As to the higher transmission lines, however “Private radio antenna towers are permitted up to seventy-five (75) feet above grade. … Any portion of an antenna tower above seventy-five (75) feet in height shall require a variance from the zoning board of adjustment (ZBA).” §12-2-39(d)
I look forward to our meeting tomorrow, and I hope that the Code provisions I have addressed will assist you and your staff in their consideration of this important matter.
Cordially,
G.R Erick Mead
