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The Medina Experience in Federal Court

The Final Chapter
By Kirk Wines, Medina City Attorney

A few days ago, Judge Dwyer signed a final order dismissing Sprint Spectrum vs. Medina III. This was only a partial victory for the city as Sprint finally agreed to walk away from its application, depriving us of the opportunity to develop some good case law and maybe even to secure terms.

Sprint's first two cases against the City of Medina were aimed at our moratorium. These are described in detail in the materials referenced above. Suffice it to say that we obtained a favorable ruling from Judge Dwyer.

At the same time as we were fighting Sprint over our moratorium, it was seeking variances and a special use permit to construct a 100 foot lattice tower, with three sectors of panel antennas at the top, at the Medina Grocery. Although Sprint referred to this as an ideal sight because it is one of the few areas where commercial endeavors are allowed within the city, it is hardly a strip mall. The Medina Grocery is a small "Mom and Pop" grocery. It is of historical significance since it used to serve the ferry traffic when Medina City Hall was the landing point for the Leschi ferry. Sprint also argued that site was unique because there was an existing 60 foot lattice tower maintained by TCI Cablevision for a microwave receiving dish. Sprint filed its second cause of action so it could amend its pleadings to seek a writ of mandamus. It complained that its application had been pending for over three hundred days with no final decision. We were able to show that Sprint was responsible for almost all of the delay. For example, after the Planning Commission initially turned down the 100 foot application, it offered to table the matter to allow Sprint to revise its application to seek the facilities at a lower level. This was in line with the planning consultants' recommendation that a facility be approved at the 60 foot level. Sprint insisted on a final decision which it then appealed to the City Council. Before this appeal could be heard, it changed its mind and asked for reconsideration by the Planning Commission, filing documents indicating that it could accomplish the same purposes using a 70 foot monopole. As the Planning Commission was getting ready to consider the monopole proposal, Sprint changed its mind again, saying it still needed a lattice tower. One more example, Sprint transcribed the wrong tape, thus delaying preparation of the record necessary for the appeal to the City Council. Sprint may have become confused because it was ordering copies of virtually all recorded meetings occurring within the City in the hopes of finding some evidence that it was not receiving fair treatment from the city.

After Sprint filed an appeal to the Medina City Council from the Planning Commission's denial of their latest version of a 70 foot tall facility, it filed notice that it was now seeking to go all the way back to the beginning and ask the City Council to approve a 100 foot lattice tower with whatever it wanted at the top. Even though I wrote a very polite letter explaining that the city might have difficulty in believing that anyone would expect it to approve a 100 foot facility after they had gone on record saying they could get by with 70 feet, this position never changed.

After the City Council denied the appeal, Sprint filed the third action. It sought to overturn the decision under all of the TCA criteria, that the decision was not supported by substantial evidence in a written record, that it constituted a ban, that we had discriminated among equivalent providers, etc. Sprint also sought review under the Land Use Petition Act (LUPA). In a status conference before Judge Dwyer, the city urged that we should hear the LUPA issues first. Only if the LUPA decision was not dispositive would we have to proceed to a jury trial on the TCA and damages claims. Judge Dwyer agreed and entered a minute order directing both parties to address this through cross motions for summary judgment.

The city filed its motion for summary judgment, Sprint did not. We initially confined our motion to the written record pointing out that the reports of the city planners and the testimony that was taken clearly supported the variance denials and that Sprint had failed to meet its burden of proving that it was entitled to a variance from 25 feet to 100 feet in height or a setback variance from 10 feet to 6 inches. Although there were a lot interesting things going on that were not in the record, we intentionally avoided bringing them up at that time.

Sprint responded by going outside of the record and virtually ignoring the variance criteria. Who is to blame it, how do you justify any 6 inch setback? Rather than agreeing that LUPA is a summary procedure based on the record, Sprint insisted on a trial so it could demonstrate, among other things, that the City had intentionally delayed processing its permit, that we discriminated against Sprint for some unknown reason, and that the City Council was lying when it said that it was not basing its decision on the unpopularity of the proposal or upon health concerns.

With the door wide open, we decided to go outside the record. Sprint had launched its system for the Seattle major trading area a month earlier, something it said in the first cases that it could not do without this 100 foot lattice tower in Medina. We decided to be among the first to sign up. I drove while the City Clerk talked on our new Sprint phone. We discovered that we had coverage throughout the city, with the exception of one fifty foot strip of roadway where you could not get reception within the car. We thought this might be enough to convince Sprint that it did not want to put up the 100 foot tower or to convince the court that we did not have to let them do it. We filed our declaration but nothing happened.

In the meantime, we had been working with TCI Cablevision. Some of the citizens were unhappy that their neighbors in Bellevue were getting more channels than they were. We discovered that was because Bellevue was being served by a fiberoptic system while Medina's microwave dish was not capable of receiving any more channels. We called them on the carpet and they agreed to update the system. When the regional manager committed to an update in the immediate future at a public hearing and added that the update would result in the removal of the 60 foot tower, we filed a transcript. We hoped that TCI would at least realize that it could no longer argue that its proposed tower was somehow justified by a pre-existing tower. Again, they did not go away.

A few days later, a letter arrived from the regional TCI manager adding that TCI had terminated its arrangements with the owner of the grocery store and terminated any rights of Sprint to piggy back on its lease. When we filed this letter and a reply pointing out that Sprint's lease with the owner of the grocery store only provided for enough land for them to place their equipment cabinets, and when we asked for terms, Sprint finally went away.


A FEW LESSONS LEARNED ALONG THE WAY


City Attorney Involvement
In my opinion, you must be involved. Without your help, your citizens will not be playing on a even playing field. All of the carriers have full time staff and/or consultants working on siting their facilities. I attended one of the major carrier's convention this June. People who were already well trained received two days of intense training. Local jurisdictions across the country are losing cases in Federal Court due to their failure to support denials with an adequate record. Your citizens cannot prepare an adequate record without coaching from some source.

Prepare an Adequate Record
When the provider comes to the hearing, the show that it puts on is designed to do more than to convince the hearing examiner or city board making the decisions. They are building a record. Typically they will submit a study from a qualified appraiser stating that a 152 foot tower will have absolutely no negative impact on property values in the neighborhood. If your record consists of the testimony of concerned neighbors that they believe this tower will affect property values, you will not be able to support a denial. Fortunately, we knew in Medina that a 100 foot lattice tower was never going to be approved and we knew that Sprint was going to sue us when we denied their request for it. We alerted our citizens on the need for an adequate record. They presented testimony, primarily that of realtors who were active within the City, that the proposed tower would have a profoundly negative affect on the values of properties in the immediate vicinity. Some of these concerned citizens were attorneys. At our suggestion, they critiqued the appraisal report which had been submitted by Sprint. One of our citizens visited every comparable cited by the appraiser and was able to testify that you could not see a tower from any of these properties.

Run a Proper Hearing
Unless you are fortunate enough to be using hearing examiners, you need to coach the decision making body. Have them do a comprehensive conflict of interest analysis on the record and invite the audience to make challenges. After consulting with MRSC, we advised the Planning Commission members that the fact that they may own shares of telecommunications stocks in their retirement funds or in mutual funds would not constitute a conflict of interest. We put this on the record too. Swear in your witnesses and tell people that they have the right to cross examine witnesses.

Of Recordings and Off-hand Remarks
It never hurts to remind your council and your commissions that their meetings are recorded, that these records are public documents and that anyone can obtain copies. As I mentioned earlier, Sprint was obtaining copies of all of our council meetings and transcribing them. Fortunately, the only really stupid remarks they caught were made by the City Attorney. Although it was a little embarrassing to see some of this stuff in print, I was able to point out that I was not the decision maker and what I thought didn't matter. They even quoted from one my epistles that MRSC put on the Internet. Any of the federal judges who do not believe in the TCA's preservation of local zoning authority will rely on off-hand statements by decision makers such as "I do not know why we have to deal with any more of these applications."

Forget Common Sense
To your citizens, to your decisions makers and to me, it is only common sense that a 100 foot lattice tower which is 80 feet from the nearest residence and which is visible from the principal living areas of scores of houses which enjoy magnificent views of Lake Washington or Mount Rainier is going to negatively affect property values and the enjoyment of life. Unfortunately, many Federal District Court judges have proven that they have no respect for common sense. They are sufficiently enamored with the importance of developing a wireless infrastructure that they will accept the inherently unbelievable testimony of the industry paid experts that, because they are going to paint this lattice tower blue, you will not even notice it when you are looking at the sunset. Fortunately, we have one of the best Federal benches in the nation. Some of the things happening in other states is down right scary.

Do Not Accept the Providers' Statements of Their Needs or Capabilities At Face Value
The providers told Medina that they could not put their support cabinets underground because of the water table. When we approved a second site for Sprint but limited it to 35 feet in overall height, it decided to go across the street and obtain a taller facility in Clyde Hill. Among your materials is a picture of the top of a mostly underground vault for their support equipment. Even after Sprint had launched its system, it continued to maintain that it needed a 100 foot tower in order to serve Medina City Hall. They did not get the tower and the reception at City Hall is just fine.

Get Informed and Develop Resources
If your city does not receive Ted Kreines' publication, "Plan Wireless" call him at (415)435-9214. In addition to talking about some of the more significant litigation on wireless issues, Ted talks about planning strategies and does his best to keep us up to date on the developing technology. Consider hiring a radio frequency engineer, if you can find one that is not already working for the industry. We use one to test actual radio frequency emissions for compliance with the FCC's standards. We will probably use one in the future to help us analyze applications. There is a lot of useful information on the Internet. In addition to the MRSC site, try http://www.wireless.com. This site has a built-in search engine for its own articles and even for articles in other publications.

Get To Know the Technology But Do Not Let It Dictate the Decisions
Included in your packets are examples of stealth technology which we will discuss later. Among the materials that were handed out today there is a copy of photographs of a Nokia unit. It is a self-contained receiving and transmitting antenna which can be mounted 20 feet up on a telephone pole or closer to the ground. It and others like it have the capacity of eliminating the need for towers. The industry will argue vociferously with this because it is a lot easier for them to put a 150 foot monopole up every 5 to 10 miles than it is to put one of these up every 2 miles. Even though it is fun, the bottom line is that we need to get the message across that we don't care about the industry's technological desires. Our job is to preserve our communities and their job is to design a way of meeting their requirements that allows us to do that.


The Law Offices of Kirk R. Wines
210 Crockett Street, Seattle WA 98109 | ph: 206/301-9558 | fax: 206/213-0021
email: kirkw@cellslayer.com