- May 1997
By Kirk Wines, Medina City Attorney
When I spoke to you last year, Medina had gotten through its moratorium and had issued the first wireless facility permit in recent years. Sprint had filed a request for reconsideration of the decision denying its application for a 100-foot lattice tower. The Planning Commission granted the request because Sprint had agreed to reduce the height of the facility and to replace the existing 60-foot lattice tower, now there for the cable company, with a monopole. We promptly scheduled a hearing on the new proposal. After we sent out notice of the hearing on the new proposal, Sprint changed its mind and said it could not, or would not, replace the tower with a monopole. This caused us to decide we had to renote the hearing, since this was considerable change in the visual impact of the facility. When the matter finally came back to the Planning Commission, they denied the application again.
Even as revised, the application would have needed several variances from the zoning code. The maximum height for all structures in the district was 25 feet, they wanted 70. The maximum side yard setback was 10 feet, one leg of the tower would have been only 6 inches from the sideline. Sprint argued that existing nonconformities on the Medina Grocery site justified special treatment. Our planners argued that existing nonconformities required tighter control of new construction.
After the final denial of the application, Sprint appealed the decision to the City Council. This was to be our first closed record appeal under "regulatory reform." We passed rules to govern the appeal and made Sprint transcribe the record of all the hearings before the Planning Commission. We ran into some glitches in this process. Sprint hired a court reporter who had difficulty properly identifying the persons speaking. Our City Clerk had to spend many frustrating hours correcting the transcript. Finally he discovered that they had transcribed the wrong meeting. Sprint had been heard at 3 or 4 Planning Commission meetings. When they tried to transcribe the last one, they gave the court reporter a tape of a hearing of a second Sprint hearing which had been heard in the same month.
Even while its own changes and failures to completely document its applications had caused most of the delays, Sprint's attorneys were constantly complaining about the lack of a final decision. Finally they filed for a writ of mandamus in the still pending federal court action. Once again, they filed a mountain of paperwork. Even after I assured them that the City Council had agreed to schedule a special hearing as soon as the record was complete, an action they needed to accomplish, they would not agree to drop their request for a writ. Finally, after I filed a declaration detailing all of the reasons why Sprint was responsible for the delays in its own hearings, they dropped the mandamus request.
For reasons of its own, after Sprint filed its notice of appeal, it sent in a letter explaining that the appeal encompassed the denial of the original application. Despite having told the Planning Commission that they could provide all essential services at 70 feet they now wanted to install a new 100 tower. I am still waiting to hear any explanation for that.
While Sprint was pursuing its site at the grocery, it also filed for a site in a church property in Medina. The Planning Commission approved the site but did not allow a height variance from the 35-foot height limit established in our new zoning provisions for wireless facilities. Sprint appealed the failure to grant the height variance to the City Council. We finally learned that they had received permission to construct a tower in excess of the height they had sought directly across the street in a neighboring jurisdiction. They continued to pursue their appeal until we were able to point out that they had nearly completed construction of the site across the street and had no conceivable use for the site in Medina. They then withdrew their appeal "under protest."
Sprint was denied its appeal to the City Council. They would never show why they wanted a 100 foot facility They could not even show what coverage they were going to supply to our citizens with this facility. They stuck with the ugliest manner of construction in a fully developed residential district.
Sprint filed a new action in federal court It combined normal appeal from a variance decision with allegations that we violated the Telecommunications Act in every way possible. This case has yet to be heard, but we are optimistic that we will be successful and establish some favorable case law in this area.
Unfortunately, many jurisdictions have lost cases in this area in the federal district courts. Hopefully, we can take a close look at why they lost and avoid the same mistakes. Most of the cases which have been lost have centered on the contention that the city failed to base its decision on substantial evidence in a written record. We cannot assume that common sense will prevail. We need to develop adequate records. In the cases which have been lost, citizens have come forward to express concerns about health and property values. The courts have largely dismissed these concerns as speculative. The carriers come in with reams of paperwork. They will have expert reports stating that property values are not affected and that the health concerns are not real, only imagined.
We solicited the help of our citizens. They arranged for real estate agents who are familiar with the area to describe the impact of cell towers on nearby residences. Even assuming that the towers do not cause health problems, if enough of the general public believe that they do, having one in your neighborhood will not make your house worth more. The visual impact alone will affect values.
Since I firmly believe that the federal legislation preempts local regulation of radio emissions, I asked the Planning Commission and City Council to eliminate health concerns from the decision making process. I even convinced the most interested opponents to concentrate on other issues.
I believe that we will have a sufficient record to show why we were not willing to grant all of the variances sought by Sprint. I think that Sprint helped us by making such an outrageous proposal.
While all this was going on, we found that our citizens were not happy with the new zoning provisions we had adopted during our initial moratorium. We declared a new moratorium. While it was in effect, we developed new wireless siting policies and a new zoning ordinance.
Our new siting policies were developed in such a way as to document all of the study that had gone into their preparation, including how we were responsive to industry requests and why the restricted areas now available for siting will be adequate to serve the industry's needs. It was an extra step in the process but it may be helpful if our new ordinance is challenged. Hopefully the new policies and ordinance will soon be available on the MRSC Web site.
Read the Medina Experience Final Chapter