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Residents of Sitka, Alaska, with help from Children’s Health Defense’s (CHD) Stop 5G initiative, on Wednesday won their bid to block construction of a 120-foot cell tower in a residential neighborhood.
The Alaska Office of Administrative Hearings this week denied Tidal Network’s request for a variance — a type of zoning exception — that would have allowed the wireless company to build a tower in a residentially zoned area with a 35-foot maximum height restriction for structures.
“CHD and the Stop 5G initiative, which represented The Defender.
The tower was part of Tidal Network’s plans for a series of wireless telecommunications towers across southeast Alaska.
Sitka is a remote island town of roughly 8,400 residents who take pride in the spectacular scenery, wildlife and tight-knit neighborhoods.
Building plans placed the tower within 150 feet of local homes. Residents said they were shocked to learn of the plans and began researching the risks of living so close to cell towers.
The tower would set a “dangerous precedent,” residents Kelly Sweeney and Robert Krehbiel said in an email to The Defender. They wrote:
“You just cannot plop a cell tower in a fully developed, platted residential neighborhood and act like it will not have any impact. Here, the homes are carefully situated on a steep hillside with old-growth forest behind and ocean views below. The beauty of the neighborhood is the scenic natural environment, and the community made great efforts to develop without any streetlights, power lines or any other visible utilities that would disrupt the natural beauty landscape.
“Also, there is the ever-present risk of landslides, that is dramatically exacerbated by any disturbance to the vegetation and soils and the natural drainage. The residents live in constant fear of a landslide.”
5G initiative.
Sitka’s planning commission denied Tidal Network’s request, but the company appealed the decision to Sitka’s assembly. The assembly referred the case to the Alaska Office of Administrative Hearings.
Administrative Law Judge Max Garner ruled in favor of the residents.
Public was ‘uniformly opposed to the variance’
Garner wrote a “well-reasoned opinion,” Sweeney and Krehbiel said in their email. They added:
“So much time and effort were necessary — while the common sense response is that this was just a bad idea all around. Now, with all the T’s crossed and I’s dotted in the ruling, we hope that this will lead to appropriate ordinances to protect the health and safety of residents from inappropriate cell tower placement.”
In his decision, Garner said Tidal Network conceded in the original hearing and in the appeal that it hadn’t evaluated whether a 35-foot tower could meet its needs.
He also noted that feedback from the public was universally negative, writing:
“Public comments and letters were uniformly opposed to the variance based on concerns that construction of the tower would lower the value of nearby properties, would expose nearby residents to potentially dangerous radio emissions, destabilize landslide prone slopes in the area, and negatively impact aesthetics and land values in the area.”
Garner wrote that structures such as wireless telecommunications towers “invariably raise thorny issues for local zoning authorities” because they are necessities of modern life, yet no one wants them near their homes.
Congress placed provisions within the Telecommunications Act of 1996 that limit local governments’ ability to deny applications for construction of the towers, he said. However, Tidal Network failed to demonstrate that the provisions of the act applied in this case, according to Garner.
Under Tidal Network’s proposal, local cellular providers wouldn’t use the tower. The company didn’t demonstrate that the tower would fill a proven coverage gap in Sitka’s cellular network, as the provision requires, Garner wrote.
He also said the code exception requested by Tidal Network would violate local ordinances.
Tidal Network never presented any technical analysis demonstrating the minimum height necessary to address a gap in wireless broadband coverage, and it failed to suitably explore alternative sites, as required.
“The applicant claimed that federal law mandated approval of the permit, even over the objections of local residents and regardless of the clear evidence of potential safety risks,” said W. Scott McCollough, lead litigator for CHD’s EMR & Wireless cases.
He told The Defender:
“We are glad the judge was willing to do the research and independently validate our argument that the federal law does not apply to this project. This case is completely controlled by state and local laws and those authorities compelled affirmance of the Planning Board’s decision.”
Ruling means ‘it won’t be so easy … to dismiss local opposition’ in the future
Eckenfels said the ruling underscores the need to strengthen local ordinances governing cell towers and maintain local control, which her team is promoting through its 704 No More initiative. She added:
“It is a reminder of the importance of pushing back against the [Federal Communications Commission] FCC trying to further federalize cell tower approval processes and underscores the power of communities coming together and advocating for their needs.”
McCollough said the judge’s finding that the federal exemption didn’t apply in this case will affect all of Tidal Network’s proposed projects throughout the region.
“As a practical matter, it will mean Tidal will not be able to ignore municipal local ordinances restricting placement or limiting tower heights,” he said. “It won’t be so easy for them to dismiss local opposition to placement in residential areas and near schools.”
The company will have to be more attentive to impacts on views, property values and safety risks, according to McCollough, who said:
“They should maybe think about putting towers where service is lacking, not in places where there is already plenty of existing broadband internet. Their federal grant was for high-cost and underserved areas, not densely-populated towns that do not need more towers.”
Residents encourage others to fight ‘ill-advised’ cell towers
Tidal Network is run by the Central Council of the Tlingit and Haida Indian Tribes of Alaska.
According to a webpage about the council’s tribal enterprises, the telecom company “strives to connect communities and residents of Southeast Alaska by increasing access to broadband internet and providing training for digital literacy.”
Tidal Network contends the tower would improve internet and phone service.
Sitka for Safe Tech says Sitka is already well served by an existing provider, GCI, which provides affordable broadband and mobile service, including plans for low-income residents.
Residents encouraged other communities to be proactive about seeking legal advice as soon as a tower is proposed.
Hal Spackman, a Sitkans for Safe Tech member, said the group would not have been able to navigate the complex rules and laws at play without legal support from CHD’s Stop 5G program. He said many other communities are facing similar challenges.
“It angers me to think that we are not alone in opposing ill-advised placement of communication towers,” he said.
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CHD’s Stop 5G initiative defending residents in Nevada and Washington
Residents of Minden, Nevada, are attempting to block the construction of two 80-foot Verizon cell towers near areas where children learn and play.
McCollough is representing the residents of Minden through CHD’s Stop5G Community Empowerment Consulting.
CHD’s Stop 5G is also supporting a community in Lewis County, Washington, where residents are appealing the community development/planning commission’s decision under the State Environmental Policy Act that a proposed cell tower does not significantly impact the environment.
The Lewis County cell tower, similar to the Sitka tower, is in the middle of a residential area, very close to people’s homes. Residents are organizing in opposition.
Related articles in The Defender
- Residents of Alaska Town Battle to Keep 120-ft Cell Tower Out of Neighborhood
- Alaskans Join Forces With CHD to Fight Giant Cell Tower in Residential Area
- Residents of Hawaii’s Big Island Pass Law to Keep Cell Towers Away from Homes, Schools
- ‘No Place in Our Community’: Santa Cruz Residents Sue County Over AT&T Cell Tower
