A project to build a new communications tower on State Road 135 North has been delayed after the discovery of a deed that limits what can be done so close to the highway.
In the 1980s, nearly 160 acres on both sides of State Road 135 North were deeded to the Brown County Parks and Recreation Department from the Indiana Department of Transportation.
The deed limits manmade structures within 300 feet of the highway, and also prohibits clear-cutting the trees so as to preserve the area’s “scenic beauty.”
The tower was to be built above an overlook on 135 North, next to land that was recently logged by order of parks and rec. Widespread tree-cutting in the valley was done at the same time trees were removed from a 100-foot-by-100-foot area on the hill for the tower.
The cut in the valley surprised and angered many neighbors and passers-by on the road, which is in the process of becoming a state-designated scenic byway.
The deed states that the grantee — which was parks and rec — “shall follow selective forest management procedures by not clear-cutting the land so that the scenic beauty of the property shall be preserved; and further, that any lands in this deed within 300 feet of the centerline of State Road 135 shall not have any timber removed nor manmade developments placed upon said lands.”
The parks and rec board had donated a portion of that land to the county commissioners for the communications tower. The tower is being paid for with money from a $2 million capital improvement bond, which will be paid back with property taxes.
At the May 1 Brown County Commissioners meeting, resident Sherrie Mitchell asked how the deed would affect the county’s plan for the tower.
Commissioner Diana Biddle said that the plan was revised by the Integrated Public Safety Commission, which facilitates statewide public safety communications.
“They would prefer it to be closer to the road, but we can move it back. It will be less effective,” she said.
Biddle said the project may now be delayed for more than a year because of the changes that have to be made.
Sheriff Scott Southerland is working with the IPSC to figure out the best place for the tower. That hill above the overlook is one of the highest points in the county.
When asked if the county will no longer be putting a structure within 300 feet of the centerline, Biddle said that was her goal, and that she did not want to further break the covenants in the deed, “keeping in mind that if we go the maximum 300 feet, it will push it (the tower) down, which means it will have to go higher and make it bigger, which is more money,” she said.
“It will push it closer to that subdivision that’s down there, Shilo Morning. It’s going to push it farther down that hill, which, to me, will make it much, much, much more visible. It’s taller, too.”
Initially, the plan was to have the tower at the top of the overlook; then, its fence and storage shed would be camouflaged by the trees in the area.
“Then, that camouflage disappeared. I have a lot of heartburn over the whole thing right now,” Biddle said.
“So, now you’ve got to figure out what to do. We have to have the tower for public safety. Our deputies and our firemen and ambulance people deserve that.”
Commissioner Jerry Pittman said the county is “asking for a lot of trouble if we violate that covenant in that easement.”
“We did already. It specifically says we cannot clear cut,” Biddle responded.
Moving the tower back 75 feet to keep it from going within 300 feet of the centerline would mean losing 50 feet of elevation, Biddle said. She said that the tower project is being re-engineered now.
“It may be in our best interest to get him (Southerland) to get the partners to come back to the table and we may have to re-discuss the whole project,” she continued.
“We’re already invested in it. We’re already a half-million dollars into it. We ordered the steel. The steel is on the way. The plans and engineering were done.”
The area for the tower will also have to be re-surveyed because someone removed the survey markers within the past month.
“We really don’t want to delay that any longer than we have to. The emergency services people in this county need it. It’s their butts that are on the line,” commissioners President Dave Anderson said.
A contract with Motorola was approved last September for $963,420 to build and equip the new tower. REMC will supply electricity and a backup generator to the site at no cost in exchange for using the tower for their own truck communications.
The communications tower will help fill in holes in the county’s primary radio system due to the hills and terrain in the county. In some areas of the county, officers are without cell phone service and radio coverage, Southerland said earlier this year.
Ambulance personnel and volunteer firefighters are currently using an old radio system that utilizes a tower in Brown County State Park. That system has been in place for at least 30 years and the tower is beyond its normal life span.
A different state tower in the park will still be used, which is on the statewide 800 mHz radio system. The new tower will add on to that system to cover areas where there is no communication now.
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After logging was done on land owned by Brown County Parks and Recreation, residents living below the cut said it caused sediment to enter the upper and lower lakes there, turning them into “chocolate milk.”
Gary and Jean Brown own a lot on Shilo Morning Drive, a neighborhood with two lakes below the logged area. The Browns contacted the Indiana Department of Environmental Management to see if a field investigator could come take samples from the lakes.
According to an email sent to the Browns from IDEM on March 20, stormwater specialist Samantha Wickizer inspected the area in conjunction with the Indiana Department of Natural Resources “to provide recommendations to minimize the discharge of pollutants from the project site.”
“The day of the inspection, I did observe best management practices implemented and we also suggested some additional measures. The IDNR is going to further work with the project site owners to close out the logging site and provide additional recommendations as necessary for stabilization practices,” Wickizer wrote.
The email also states that logging activity and roads generated from logging are exempt from Rule 5 in the National Pollutant Discharge Elimination System general permit rule program. Rule 5 centers around storm water runoff associated with construction activity.
“The land disturbance that exists on the site that is not associated with logging activity is not large enough to meet the one-acre threshold required for Rule 5 applicability,” the email says.
Shilo Morning-area resident Grant Stuart and his lawyer, Scott Hall, have a pending public records request with the county commissioners and their legal counsel, as well as with the Brown County Parks and Recreation Department. Stuart is seeking meeting agendas and minutes, requests for proposals, bids, bid awards, contracts, purchase orders, payments, correspondence or communications, or any other documents that concern the logging/tree clearing performed in 135 North at the overlook in January and February.
As of May 9, Stuart said he had received none of those documents; however, an email sent to his lawyer on May 1 said that commissioner Diana Biddle was working on it.
A different law firm than the one the county currently contracts with, Mark Holloway of Stephenson, Morow & Semler, was corresponding on behalf of the county in response to Stuart’s requests.
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