Can a Cell Site’s Neighbors Use Diminution of Property Values as Substantial Evidence? Here’s a Federal Decision That Says “Yes”

Reprinted from Plan Wireless website: http://planwireless.com/wellington.htm

Conceled cellphone tower sites.

(click headline for full text.)

Plan Wireless is a consutant group that helps cities and counties plan their wireless, negotiate their leases and make the best choices.  http://planwireless.com/thepw.htm

The Village of Wellington is a high-end community in a high-end county: Palm Beach County in Florida. Metro PCS (a regional carrier) used a site acquisition consultant to propose a “stealth”[1] flagpole on a golf course.

The Village of Wellington, “based on objections by the residents, refused to issue a permit to construct the pole. The residents’ primary concern, voiced at a June 2003 meeting, was the impact the pole would have on the value of their property.”

The neighbors argued that they would not have “purchased their homes if the pole was present and a local realtor testified the pole would adversely impact home resale values.”

The site acquisition consultant (Mr. Linet) countered, stating:

these objections amount to an impermissible pure aesthetic or “not in my back yard” objection. He (Linet) maintains that the only factually based testimony was provided by two non-residents. The first, an executive director of another telecommunications facility that had constructed a similar cell site after resident opposition, testified that the pole would not adversely impact property values. The second, a real estate appraisal executive, provided similar testimony based on a study involving condominium sales in Boca Raton, Florida.

While the site acquisition consultant raised other claims, he was essentially denied on all of them at the District Court level.

The site acquisition consultant appealed to the U.S. Court of Appeals for the Eleventh Circuit. The Eleventh Circuit Court upheld the district court on all counts. The three-judge panel found that:

Our cases highlight that a common objection residents have to the construction of a cell site is that it detracts from the aesthetic appeal of the community. See, e.g., Am. Tower, 295 F.3d at 1208; Preferred Sites, LLC v. Troup County, 296 F.3d 1210 (11th Cir. 2002). A blanket aesthetic objection does not constitute substantial evidence under (the Telecommunications Act of 1996).

This is why Kreines & Kreines, Inc. recommends that “aesthetics” not be used as a word or as the basis for a denial in cell site decisions.

But the Eleventh Circuit goes on to say:

• Aesthetic objections coupled with evidence of an adverse impact on property values or safety concerns can constitute substantial evidence.

Further, the three-judge panel found that the district court held correctly that the Village’s decision to deny Linet’s permit was based on substantial evidence received at the June 2003 hearing. We have held that the “substantial evidence” standard is the traditional substantial evidence standard used by courts to review agency decisions.

The Village met this standard. It heard objections from residents and a realtor concerning the cell site’s negative impact on real estate values.

More importantly, the court noted the site acquisition consultant’s “expert testimony contradicting the adverse property value impact concerns was provided by a telecommunications executive who placed a tower in a different part of the community and a realtor who based his knowledge on condominium sales in a different county. This does not change our conclusion. The residents were worried about the impact of this tower on the golf course within their community, not a different tower, different location, or different community.”

PlanWireless has identified two other cases where property values were shown to be diminished by a proposed cell site. But no case so clearly indicates that aesthetics alone is not a valid concern. However, when coupled with property values, the concern may be substantiated for purposes of denying a cell site.

So, what do we learn from this case?

· Aesthetics by themselves do not constitute a valid issue.

· Property values, when coupled with aesthetics, are a valid issue.

· Residents and realtors can testify as to property values and their testimony can constitute substantial evidence.

Kreines and Kreines, Inc. often hears from appointed and elected officials: “Don’t testify regarding diminished property values because we don’t want to hear it and it won’t influence us.” Well, that’s fine; but if it influences the courts, shouldn’t local governments consider the property values argument?

Finally, your local government may encounter the attitude: “Don’t tell us about Florida and the Eleventh Circuit. That’s a unique state and we’re not in the Eleventh Circuit. There is no such thing as ‘parallel precedent,’ so what they find doesn’t influence our courts.” PlanWireless is not a lawyer’s newsletter, and Kreines & Kreines, Inc. is not a law firm. But every case at the federal appeals court level has borrowed decisions on cell site issues from other circuits. Except for the Abrams v. Rancho Palos Verdes, the Supreme Court has yet to deal with telecommunications issues regarding wireless and Abrams was solely concerned with collecting damages.

This case, which is known as Michael Linet, v. the Village of Wellington is important for all local governments in the U.S.

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[1] Kreines & Kreines, Inc. advises clients not to use – or accept – the term “stealth” in an application. “Stealth” means sneaky, which may be acceptable for the industry to admit to, but not befitting the open decision process of local governments.

Health Canada Issues Cell Phone Advisory

Warnings to cell tower workers posted on the gate to a transmission tower base. 
Can you kids read and understand what this sign is telling them to do?

On October 4, 2011, Canada joined Israel, Germany, India, France, Finland, Russia and Switzerlandin recommending that children under 18 limit their cell phone use. In response to the World Health Organization announcement that radiofrequency electromagnetic fields are a possible human carcinogen (in the same class as DDT, lead, and chloroform), Health Canada (Canadian federal government agency) issued a proactive advisory to encourage kids under 18 to limit cell phone usage, text rather than call, and use hands-free devices, More information is at http://tinyurl.com/3ts8sgn.

We Must Have Been Sleeping...

... because the California PTA made a formal RESOLUTION in 2001 to oppose cell towers and wireless devices in schools.    Here's the text for the wireless resolution from California if you would like to read it.

Here comes Georgia TEN YEARS LATER and our PTA says what?  "We don't take sides on issues like these."  Really?  Tell that to California.  They are light years ahead of us in education, safe use of wireless, going green, solar power... maye it's time to move!  Oh, that's right!  Those darn property values won't let any of us go anywhere right now, will they?

Well, while you are stuck in DeKalb similar to the way that drivers are now stuck in worse  traffic thanks to the NOT-SO-HOT lanes, at least you can enjoy a few good short films, courtesy of the Caliornia PTA.  Pinch me when the Georgia PTA gets on board and stops trying to pretend like they aren't hiding the cell tower money somewhere. 

The one exception to this 'teasing' of the PTA is Briarlake.  They may have agreed with Womack in the beginning, but they sure did a 180 degree turn when they realized they were not fairly representing their community thanks to a little publicity courtesy of GTCO-ATL.  Last we heard they were drafting a resoltuion.  I asked if they would then give it to the state PTA and I got a laugh.  The Briarlake parent told me, "I don't think they are that serious." 

So, what does it take to get serious?  We are!   Are you? 

Public Exposure: DNA, Democracy, and the Wireless Revolution and Electromagnetic Radiation: A Scientific Overview Part One (30 minutes) Part Two (30 minutes)

Electromagnetic Radiation: A Scientific Overview by the late Dr. Theodore Litovitz, physicist, Catholic University of America (24 minutes)

Avaliable only online, "Electrical Hypersensitivity and the Health Risks of RF Exposure from Antennas" Talk by Magda Havas, Ph.D., professor and environmental scientist, Trent University, Ontario, Canada Part One (20 minutes) Part Two (21 minutes)

To the MLK, Jr. High School Community: Keep Up the Great Work!

Making a pledge to support our efforts to unite the county against the unfair lease agreement signed by the school board that will place cell towers at 9 of our schools, some dedicated community members are working together to spread the word and encourage people to sign our petition.

The kids at Martin Luther King, Jr. High School should be proud of their community and are encouraged to download the blank petition sheets from our website so that they can help the cause, too.

We have a goal of 100 signatures per school, so get out there and tell people about the issue, the petition and remind them to vote NO on SPLOST IV!

Cowardice asks the question - is it safe?
Expediency asks the question - is it politic?
Vanity asks the question - is it popular?
But conscience asks the question - is it right?
And there comes a time when one must take a position that is neither safe, nor politic, nor popular; but one must take it because it is right.
-- Dr. Martin Luther King, Jr.

Our lives begin to end the day we become silent about things that matter.
-- Dr. Martin Luther King, Jr.

Life's most urgent question is: What are you doing for others?
-- Dr. Martin Luther King Jr. (1929 - 1968)

Of course HEALTH should be a concern!

Finally, some local governments are coming to their senses and taking a closer look at that pesky little FCC ruling of 1996 that states that "health" cannot be a reason for local zoning officials to deny a tower application.  With these towers popping up everywhere these days, it is about time someone starting thinking about the cumulative radiation of so many towers. 

For example, the Margart Harris Academy, a DeKalb County school selected for a cell tower during the vote they held this past July, has 155 cell phone towers in a four mile radius of their school!  And, folks, we only have a total of 5 carriers in all of great Atlanta!  AND, they all must co-locate on each other's towers before they are permitted to build a new one. 

So, even when a company states it is "well below federal standards," you should not assume that this is the promise they will live with once their zoing is approved.  The application is usually for only one provider, the one building the tower usually.  But, as soon as it is up, you will notice more and more and more antennas being added.  These are all the new providers they are receiving nice sublease income from that likely offsets anything they had to pay for the tower in the first place.

LA County Calls For Repeal Of Federal Cell Tower Health Preemption

Here's the latest from our environmentally friendly state to the West... the far, far West. Exactly how long does it take before good ideas catch on and move across the country anway?

Posted on November 2, 2010 by rosetta

(2009) The Los Angeles County Board of Supervisors voted unanimously on Tuesday, June 2, to actively seek and support federal legislation to repeal portions of the Telecommunications Act of 1996 that limit the authority of state and local governments to regulate cell towers and related wireless facilities on the basis of their health and environmental effects.

The vote follows similar action taken by the Los Angeles Unified School District (LAUSD) Board of Education at its May 26, 2009 meeting.

The motion by Supervisors Zen Yaroslavsky, Michael D. Antonovich and Mark Ridley-Thomas cited “ongoing debate within the scientific community and among governing bodies throughout the world regarding how thoroughly the long-term health effects of low-frequency electromagnetic and radio-frequency emissions are understood” and “questions . . . regarding how well the existing regulations established by the Federal Communications Commission [FCC] protect more vulnerable populations such as school-aged children, and how well they protect against the cumulative effect of radio-frequency emissions on people who live or work in close proximity to multiple cellular facilities.”
While the City Council of Portland, Oregon passed a resolution in May of this year calling on the FCC to work with the Food & Drug Administration and other federal health and environmental agencies to revisit and update studies on the potential health effects of wireless facilities like cell towers, Los Angeles is the first major local government to directly take on the federal preemption of the Telecommunications Act of 1996.