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SLO is hardly alone battling cell lawsuit

Federal law should be amended to better define local authority

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A good decision made last December by the (then) county Board of Supervisors may soon be overturned in federal court. Voting unanimously (although District 1 Supervisor Harry Ovitt was absent), Supervisors Patterson, Gibson, Achadjian, and Lenthall denied Sprint/Nextel’s application for a mega-cell phone complex on Toro Creek Road after the property owner illegally graded an access road. Altogether, 2252 cubic yards of dirt and 10,000 feet of land were moved without the benefit of permits, geological assessment, archeological survey, or any regard for slope stability.

Sprint/Nextel denied it had anything to do with the grading violation, but the company was prepared to benefit from it.

The cell-tower application was packaged in such a way that it looked like mitigation for the gross grading violation could only occur if Sprint was allowed built its massive cell tower complex. The board basically “unpackaged” it, requiring the property owner to mitigate the grading violation before any type of development would be considered. The message was clear: That’s not how business is done in SLO County.

The supervisors indicated that they probably would have approved a cell tower so Sprint/Nextel users could enjoy the same coverage on Highway 41 that AT& T, T-Mobile, and Cellular One clients had, had the company had been willing to follow the county’s Title 22 laws and tried to co-locate at existing nearby sites, but the telecom giant hadn’t bothered with that regulation either.

Now a defendant in a federal lawsuit, SLO County finds itself in the same position as hundreds of other municipalities across the country that have had to defend themselves against court cases brought by cell companies.

Will the judge see this as the county views it: a simple case of denial of Sprint/Nextel’s application because county laws and regulations were not followed during the application process? Or will the supervisors’ decision be judged one that harms Sprint/Nextel’s competitive ability to provide cell-phone service?

If so, county counsel will be up against the 1996 Telecommunications Act, which is so ambiguous that it has forced judges to determine telecommunication policy. Conflicts over cell-tower sites are so common the act places citizens in conflict with their own churches, schools, and governing boards.

The act guarantees local authority in cell-tower citing, then lists exceptions that strip all that local authority away. Local governments cannot appear to discriminate between cell-phone companies, for example. And since these companies purposely keep their technologies so incompatible that one cell company cannot even complete an emergency 911 call for another, it can be argued that allowing one cell company a tower in an area and not another is discriminatory. So multiple towers become the norm, turning one quaint American community after another into Lego land on steroids.

Local governments are not allowed to restrict placement of cell phone towers due to health concerns, as long as the towers comply with FCC standards for electromagnetic emissions.

“This might be premature, given the large amount of ongoing scientific research on the subject and the lack of clear conclusions,” Hofstra University Business Professor Susan Lorde Martin wrote in an article for the Berkeley Technology Law Journal.

In Westport, Connecticut, Verizon purchased a vacant house intending to put up a 130-foot tower. The town sued, to no avail. In nearby Easton, Connecticut, neighbors found out a couple going through a divorce was getting a cell tower in the backyard to pay for it. When the neighbors asked what they could do to stop it, they were told to buy the property. Reluctant to succumb to what they dubbed “green mail,” they nevertheless offered $500,000, only to be turned down. The neighbors of an Illinois property owner who was considering leasing land to a cell company tried to get their planning board to change her property designation.

Aquinnah, Massachusetts, a quaint beach town on the western end of Martha’s Vineyard, may have found a solution. When Cingular (now AT&T) took the town to court because the municipal governing board turned down its application to put a cell antenna in a church tower, Aquinnah officials were already considering proposals for a distributed antenna system (DAS).

 “The DAS system is great to work with,” said Aquinnah Board Selectman Camille Rose. “Instead of having big, ugly, possibly unhealthy towers, the DAS system uses existing telephone poles and places antennas on them. The RF output is considerably better.” Aquinnah officials created a special overlay planning district involving two other beach towns. The communities plan to own the DAS infrastructure and lease space on it to the different cell companies.
 
 “The judge said that AT&T could go ahead with their plans but once the DAS system was in place they would have to join it instead,” said Rose. “We were very fortunate to have a judge that understood we are virtually completely tourist driven, we depend on the beauty of our landscape, and our dunes. We can’t have uncontrolled towers everywhere.”

SLO County has to go to court to fight for the right to deny applications based on violations of its own laws, but Sprint is appealing that with a law that seems to have been written just for them.

Anne Quinn is a resident of Toro Creek Canyon and a member of the Toro Creek Alliance Group, a group of neighbors who share a love for Toro Creek Canyon and work to foster a sense of community along a road where traffic stops for quail and cottontails. Send comments to her via the editor at econnolly@newtimesslo.com.

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