We Help Citizens … And That's Good for Local Government

The telephone rings … or more likely the e-mail bings … and it's more often-than-not a tale of woe like the following:

We have a tower proposed just across the road from our house.  Our neighbors want to stop it.  We talked to our town planner and he said there's nothing he can do.  He claims that the federal government requires that towers get built and that the local ordinance encourages this tower because of something called co-location.  Is that true?  Can you help us?

Ordinarily, we don't like to challenge our potential clients, so going into a citizen dispute against a local government is not something we are anxious to do.  Besides, it's expensive and most homeowners are not eager to pay consultants for a job they think their own city or county should be doing for them.

But life calls for a few challenges we aren't anxious to accept, and if we see a local government laboring under the delusion of a "tower ordinance," we'll take the job.  Here are three real-life stories, and one of them is still unfolding at press time.

New York State: an Upscale Exurb of New York City

The first time we heard from the neighbor to a proposed tower was in September.  The next time we heard from him was the following March: things were coming to a head and even though he had played the "alternatives" (have the applicant provide alternatives to the proposed project) card, the attorney for the tower company claimed that no other site would work and she needed to get four carriers on that one tower.  "Then why does your drawing show seven antenna arrays?" he asked.  "In case three more come along," was the answer, "and then the town will have a place to put them."

This sounded like a "dumping ground" argument to Kreines & Kreines, Inc.  The Town was having a tough time approving the demand for cell sites, so the Town induced a tower company to put a big one in someone's backyard and let the neighbors of that site bear the burden for their part of the community.

All in the name of co-location.

Of course, we jumped on the chance to assist this citizen and his neighbors.  Anytime a local government thinks that concentrating the first few cell sites in grotesque "co-locations," all in the guise of a "tower ordinance," is a way to get the problem off the Town's back, we need to show the local government that the problem is only going to get more difficult rather than go away.  (There are many more coming, folks.  Your jurisdiction needs to plan for them.)

Unfortunately, we had to warn our client that his success would mean that the tower company would move to another site in the Town.  Human nature being what it is, his own town wanted him and his neighbors to swallow a huge nuisance they didn't want or didn't need, and his first objective was to neutralize the Town, rather than to educate it.

Education of the Town would have to come later.  Bottom line:  the neighbors won the battle, but will the Town win the war?

Washington State: Farms and Woods Not Far From Seattle

Usually, when Kreines & Kreines, Inc. gets a call from someone who's "just a farmer," it means he is looking for free advice.  These homeowners were different: the man who called us knew they had to hire professional help to enlighten their county.  It had already happened once before with a wireless carrier when the citizens convinced a friendly Board of County Commissioners to reverse the Planning Commission approval on appeal of the carrier's application.  But the Board of County Commissioners must have a reason to grant an appeal and it was not necessarily inclined to do so again. 

Funny how this system works: the applicant our client opposed had spent much time and money on a poorly drafted application.  Only if there were technical problems that the County staff didn't correct and the Planning Commission wasn't worried about, would the Board of County Commissioners be moved to overrule the County staff's recommendation and the Planning Commission approval.

We told our clients, "Just get us a page-and-a-half long list of reports and drawings and we will find technical problems."   Here are just a few of the technical problems we found with the application:

·       The use permit recommended by the County staff for approval would be, in our opinion, in conflict with the County's Comprehensive Plan.

·       Plans submitted by the applicant showed nine proposed antennas in some drawings and 12 in others.  County staff had found some of these discrepancies, but not all of them.

·       Elevations showed, variously, 6, 9 and 12 antennas.

This list goes on, and so did the postponement of the public hearing dates.  After four months of continuances, our client had visited the County so many times to ask for new (and changing) materials submitted by the applicant, a County staff member told the carrier that the neighboring homeowners were asking such sophisticated questions that the applicant should expect an appeal.

For reasons that were never publicly stated by the applicant, the carrier withdrew the application.

The people who could really learn from this experience would be the County staff and they never even got to see the critique of the application we prepared for the homeowners.

Prettiest Little City in the U.S.

In the April 1999 issue, PlanWireless featured a workshop conducted by Kreines & Kreines, Inc. in a beautiful place in Florida, where:

·       The city deliberately created an ordinance to please the industry, out of fear of being sued by a carrier.

·       The city has one of the most restrictive comprehensive plans and land development codes in the U.S.

·       The resulting environment is well preserved and homes in the city command very high prices.

·       Homeowners throughout the city knew the above three facts and tried to get the city to listen to some other opinions (other than those of the wireless industry) on how to regulate the wireless industry.

By the year 2000, it had taken the city four years, a moratorium, and countless thousands of dollars to come up with a "telecommunications ordinance" that is both overkill on the industry and internally inconsistent.

After the ordinance was adopted, a wireless carrier took two years to make the first application to the city for a 149-foot tall monopole on city property.  The problem is that the site is surrounded by homes with values of from $1 million to $2 million on one side and a nationally known wildlife refuge on the other.

The homeowners knew to call Kreines & Kreines, Inc. from our workshop in 1999. There was no question where the group wanted to go:

·       They had hired an attorney.  (Some of the homeowners are attorneys.)

·       They had already raised a sizable war chest (five figures, although it may go to six figures before this is over).

·       They had forced a meeting with the wireless carrier applicant.  The meeting was a waste of time, although it was an honest attempt at dissuading the carrier from entering a battle they probably will not win.

What was amazing to Kreines & Kreines, Inc. through this entire process is that the City stepped aside – abdicated its responsibility – in order to let the carrier run the show.  The City's fear of being sued by a carrier is gradually evolving into a fear of being sued by its own citizens.

Flying to Florida, Ted Kreines, AICP, presented a list of problems with the application for one-and-a-half hours at a "public hearing."  The public hearing was never called or noticed as a public hearing, but that's another story. 

As competent substantial evidence against the application began to mount, the mayor stated:

O.K., Mr., Kreines, we get it.  The application is inadequate. You don't need to go on, point after point, reading our ordinance back to us and telling us why the application hasn't met each and every provision of the ordinance.

The mayor was admitting the City was trying to approve a project that didn't meet the City ‘s ordinance and telling the homeowner's representative to shut up and sit down.

This story is not over.  The City asked the carrier what they intended to do about this problem and the carrier offered to meet with the homeowners and provide to the homeowners all the evidence the citizens need to assuage their insistence that the application fails to meet the City's ordinance.

But where is the City in all of this?  Who minds the store when the citizens catch the City ignoring its own laws?  What happens to the City's "sufficiency" requirements which state that no application shall be accepted before it is sufficient?  What happens to the planner's recommendation to approve or deny?  Absent such a recommendation, the planner clearly takes himself out of the line of fire.  So it was left to the homeowners to tell the City: deny this loser.  Must an applicant pass a homeowners' test instead of a city test before the applicant can be approved?

Updates will be provided in future issues of PlanWireless.

Here's Why the Local Government Benefits from Citizen Disputes

Cell sites must begin to move into residential areas.  There will be many more applications that will cause citizen opposition.  Cities and counties have enough to worry about and they may not want to invest in proper wireless planning.  In those cases – sooner or later – the citizens will seek a just and reasoned disposition of the matter.  The local government will learn – sometimes the hard way – that there are three lessons to be learned from citizen opposition to towers:

·       Plan for cell sites rather than react to them.

·       Tower ordinances that encourage towers don't work.

·       Listen to your citizens, local governments.  Failing that, keep reading PlanWireless.

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Kreines & Kreines, Inc.
58 Paseo Mirasol, Tiburon, CA 94920
Phone: (415) 435-9214
Fax: (415) 435-1522
e-mail: mail@planwireless.com