Councilor Misrepresenting FACTS?

On the January 24 "Buzz Blog" at the Duluth News Tribune website, the guest blogger was City Council President Jeff Anderson. He had some things to say about the Cell Tower Issue:

Cell Tower Update

"The Duluth City Council has received numerous e-mails concerning our decision to grant AT&T a conditional use permit for a cell tower on East Superior Street. In fact there was a Letter to the Editor in the January 20th edition of the Duluth News Tribune which was very critical of our decision.

I think it’s important for those concerned individuals to know how the conditional use permit granted by the council fits with the comprehensive plan.

The initial request for a conditional use permit ("CUP") came on August 13th. The city planning commission held a public hearing on October 13th. The planning commission sent the proposal to the city council without a recommendation because the motion to recommend the CUP failed on a 5-5 vote. On October 22nd, this matter came before the city council and was tabled until November 9th. At the November 9th meeting, the council voted 7-2 to approve the cell tower CUP.

Up until this point, there were few, if any, communications with the council that this tower was of concern to wildlife. In fact, one of my council colleagues spoke with a representative from U.S. Fish and Wildlife and they indicated no concern.

Our planning staff reviewed the CUP proposal for zoning and comprehensive plan compliance. In Minnesota, the law requires that if the comprehensive plan and zoning are in conflict, the zoning prevails. These types of towers are an allowable special use within the zoning at issue.

The city has now issued its final decision on the CUP. Revoking the CUP at this time would likely generate litigation for the City.

Federal law significantly restricts the City's ability to control the placement of these types of towers through zoning. Rest assured that the new zoning code is being carefully crafted to comply with the federal law."

I find it interesting that Anderson quotes an unnamed Councilor as a resource for information from Fish and Wildlife. He makes it sound like Fish and Wildlife was contacted prior to the vote. In light of the FACT that Fish and Wildlife took the time to send the City of Duluth an Official warning about the danger to birds at this site, I find his claim dubious at best.

Here is the email exchange that I had with him over his statement:


Councilor Anderson,

I have a question about this portion of the blog you posted on the DNT Buzz Blog regarding the Cell tower approved for my neighborhood:

"Up until this point, there were few, if any, communications with the council that this tower was of concern to wildlife. In fact, one of my council colleagues spoke with a representative from U.S. Fish and Wildlife and they indicated no concern."

You are referring to a conversation between Councilors discussing City business, which is public information.

I am asking, for the record, who is the "Council colleague" and who did they speak with at U.S. Fish and Wildlife?

I find your statement incredible considering the City received an official notice from U.S. Fish and Wildlife stating that they do have concerns.

He didn't reply in a timely fashion, so I sent this:

Council President Anderson,

As you have not replied to this question yet, (and were able to make comment on my e-mail query to Jeff Cox about presenting to the council in the meantime) I sense that you do not intend to answer it.

I believe in holding public figures accountable for public statements. I guess that now my only option of getting to the bottom of this is to bring this comment to a more public forum.

Thank you for reinforcing the spirit of my editorial.

Kelly Boedigheimer

Then....an hour or so later....THIS!

That is correct. I have no comment on your blog post question. My conversation between another councilor was private and not at a public meeting. I have consulted our attorney's office and they concur.

Respectfully,

Jeff


Now, why did he have to consult the attorney about something he said in a public forum? Am I wrong to assume that a public figure should back up statements made to rebut information that Citizens worked hard to prove? I think my editorial (you can read a long version below "Big Egos Make for Flawed Decisions") really got to him. It was highly critical of the fact that the Council did not listen to people who got a Federal agency to back up their claims on this tower. So what does this politician do on a public forum? Intimate that some other councilor heard from the same agency that they had no concern. Then he refuses to tell us who, so we can verify the information. Wow, he couldn't have done a better job of proving the point of my editorial!

Do you think he was telling the truth?


He also cut and pasted all of the stuff about the process and zoning from an email written by the City Attorney. I tell ya...if this is the advice being given to the council about FCC law, we are in trouble!
He copies this statement from the memo:

"Federal law significantly restricts the City's ability to control the placement of these types of towers through zoning."

I sent this memo to a consultant who works exclusively with municipal code and cell towers. He said this statement is "absolutely not true!" He didn't have anything good to say about the content of the memo. (A little advice: When you cut and paste from a memo you should make sure the information is accurate, it might makes you look ignorant if it's not.)

He explained that under section 704 of the Telecommunications Act, "local zoning authority over personal wireless services is preserved, and the FCC is prevented from preempting local and State land use decisions."

However, local government zoning decisions are still restricted by several provisions of federal law.
There are five things that cities cannot do when considering towers:
1. They can't discriminate, eg: choose to only let in Verizon
2. They can't completely zone out cell towers
3. They can't deny based on RF emissions (health effects)
4. Any decision to deny a request must be made in writing and be supported by substantial evidence contained in a written record.
5. The law also requires a State or local government to act upon a request for authorization to place, construct, or modify personal wireless service facilities within a reasonable time.

So, how does that substantially limit zoning? I think our City Attorney takes a very weak stand on this whole issue. Hopefully we have staff in the planning department with more understanding of the law. Otherwise...in Duluth, you can expect to see a Cell Tower in YOUR backyard very soon!