Hopefully, a Victory of Sorts

After Anna Peterson and I spoke to the City Council on Monday night, Tony Cuneo (one of the Councilors who voted for the tower) spoke up and thanked us for our presentations. He said that it was obvious that we were not going to give up and that we shouldn't. He also said that, had he known what he knows now, he would've voted no. He went on to say that this has brought awareness to the issue of towers in our community and that they will likely look at future proposals with a greater degree of scrutiny. YAY!! I really feel that we scored one on that note. If from this point forward our Council and Administration spend more time than picking up a rubber stamp, great! I would have loved to see one of the councilors grow a backbone and bring this back up, but I was pretty sure that wouldn't happen. After the meeting we met with a local activist who was attending for another issue. He told us about the Minnesota Environmental Rights Act, Statute 116b. This one is very interesting, and we are feverishly researching case law and the statute. Stay tuned...we might take some legal action soon!

Words for the Council

This is my speech:

Good Evening Councilors,

My name is Kelly Boedigheimer. I live down the road from the planned cell tower at 78th avenue east. I've owned my home for 33 years and each fall I witness an extraordinary migration. Millions of songbirds and raptors fly south, directly over my home. This fall I watched thousands of Nighthawks fly over at approximately 20 to 30 feet above the treetops. Nighthawks are listed as one of 26 Species of Greatest Conservation Need. These are birds who are identified as being rare, declining, or vulnerable in Minnesota. All 26 species on the list migrate through this corridor.

Clearly, the council has approved an inappropriate site and should take action to fix the problem.

The Council cannot claim that they did not have notice that this was in a major migration path. And it is shameful that one Councilor has chosen to misrepresent this fact on a News Tribune blog, in an attempt to justify his vote.

On November 3rd I sent an email to the Council, explaining that this is a major migration area. I included the Guidelines from U.S. Fish and Wildlife which clearly state:

“TOWERS SHOULD NOT BE PLACED IN KNOWN MIGRATORY FLYWAYS.”

The council did not discuss migration during the November 9th meeting.

On November 10th I received a phone call from Robert Russell with U.S. Fish and Wildlife, Division of Migratory Birds. He confirmed that this is one of the greatest migration paths in the western great lakes and a terrible place for a tower.

This tower was not approved by the Planning Commission and the Environmental Advisory Council had questions that went unanswered. The proposal was pulled by AT&T from the October agenda. Notice was made on Friday, November 6th at 3:45 that it was back on the agenda for the following Monday. This gave citizens no time to organize.

Because this item went onto the agenda on Friday, it is likely that Councilors didn’t even have the tower proposal in front of them at the meeting.

Several Councilors who voted to approve this tower told me that it was because AT&T convinced them they needed coverage for 911 calls.

On February 1st I received a letter from Andy Sackreiter, Radio Access Director for AT&T. I had asked why they need this tower. NOWHERE in his two page letter, are 911 or emergency calls mentioned.

AT&T gives this reason, “The planned cell tower will be equipped to provide 3G wireless broadband services.” Seems it’s not really about emergencies after all. And if Verizon and Sprint have 3G in our area, why can't AT&T locate on or near those towers?

The City has received an official warning about this tower from US Fish and Wildlife. The council and administration have taken NO action on it. This leaves the City vulnerable to even further penalty when birds die at this tower

Duluthians, watch for a tower coming to your backyard soon. Our leaders granted the wishes of AT&T while ignoring citizen input and the warning of a federal agency. In the future we must distinguish what the company actually NEEDS from what they WANT. And for a city our size they are going to want a LOT more towers.

I have given many reasons why this tower should be reevaluated. AT&T should have to prove that this is the ONLY solution. Third party evaluations at tower company expense should be mandatory for all future proposals.

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!

Time for a Creative Break

I've been spending way too much time being a mom, gardener, hack blog writer, and activist. What has suffered greatly is my artwork. I used to draw all the time, charcoals, pastels, colored pencils, and pens were my best friends. But life has taken me in other directions and now my old drawing hands are very very rusty. I'm not very forgiving of my attempts, and I become frustrated that I cannot sketch like I used to. I do know that it takes a lot of practice, and practice means taking the time. I'm going to put a small sketchbook into my purse, and try and devote a few minutes a day to just exercising my eye hand coordination; with no criticism, and no judgments. We are our worst critics and the voices in our head are very hard to answer to. So, wish me luck as this seems about as hard as dieting for me!

I do take time to make jewelery. I've always loved beadwork, but my eyes are not so hot and I can't do Ojibway style beadwork anymore. I am doing some nice contemporary necklaces and earrings that I'll post in the future. I just ordered beads from Fire Mountain Gems for the first time...oh man, that can prove to be addicting.

I have only a few weeks before we pull out the heat mats, lights and potting supplies for seed starting. We plan to start peppers early February. Last year we started them on St. Patrick's Day and found that to be a bit late. Some of peppers froze before they could fully mature. I'm sure our cool summer didn't help, but starting them earlier won't hurt.

We found that making pepper jelly with all Habanero peppers is really the fantastic! We've gone through most of the jars we made last year. We are looking for Ghost peppers for making jelly this year. I like to mix it half and half with a fruit jelly like crab apple or plum and serve it with crackers and cream cheese. People swoon, and love the heat. Here's the recipe for the jelly:

Napalm Jam

# 1 1/2 cups vinegar
# 6 cups sugar
# 1 1/4 cups chiles
# 1 package pectin

Puree the chilies with a food processor or a blender. If using a blender, the vinegar may be needed to keep the blender from stalling and aide in the puree process. Either way, take care when opening the cover of the blender or food processor; the fumes are deadly. Place puree in a non-reactive sauce pan and add the powdered pectin. Add the vinegar if it has not already been used in the puree process. Stir to dissolve the pectin. Place over high heat until the mixture comes to a HARD boil (a boil that cannot be stirred down). Stir continuously as the mixture is being heated. Add all of the sugar and bring back to a full rolling boil while stirring constantly. Boil hard for 1 minute. Remove from heat and skim off the foam with a metal spoon. Place in hot sterilized jars and seal. Makes about 6 0.5 pint jars.

Note 1 The original recipe called for jalapenos. I have since made this jam with New Mexico chilies (after they have turned red) and a habanero type chili that I was growing. Each type of chili produces a different colored jam as well as a different heat response. The jalapenos will give a slow turn on and slow turn off of medium heat; the New Mexico chilies will get the back of the throat and the habeneros will produce a "step response" of sensation. I would be interested in other peoples experiences with other types of chilies.

Note 2 Originally, the chilies were "volume measured". All of the vinegar was placed into the blender and enough chilies were added such that the liquid reached the 2.75 cup line on the blender. I use a food processor and do not use vinegar in the puree process. To measure, I cut the chilies into the size of half a habanero and fill up a 2 cup liquid measuring container. Measurements are not too critical and the bite will vary from batch to batch as the chilies vary in heat content. I try to keep the amount of fruit at this level. If the bite is too much for people, bell peppers can be used to bring up the amount of fruit used.

Note 3 I use regular Sure-Jell pectin. Other brands should work just as well in this recipe. There has been no experience in using the low sugar recipe pectins with this recipe.

Note 4 Experiments with adding other fruits to this recipe have been tried. 1-2 ripe peaches, pureed and mixed with the chili mixture tastes good. The problem is trying to coordinate the fruit harvest with the chili harvest. I would be interested in other peoples experiments with other fruits.

From: John A. Gunterman
Posted By: The Chile-Heads Recipe Collection

This recipe was found on one of my favorite sites:

http://www.pepperfool.com/index.html

Follow the Money

I've been fortunate to have some people just appear out of the blogosphere to help me with my research on this monopole issue. One of those people is Richard Colmi from the Center for Municipal Solutions. Someone who had read my blog postings suggested I contact their organization for help. This is an excerpt from their website http://telecomsol.com/about_us.html which describes their business:
"The Center for Municipal Solutions (CMS) is an organization that, since 1987, has been exclusively dedicated to serving local governments (municipalities and counties) and represents in excess of more than 500 communities in 23 states and the National Park Service.

The two founders have a combined total of more than a half century of experience (on the executive level) in the telecommunications industry. The members of the team of experts include Professional Engineers licensed in more than 40 states, including RF, Structural and Environmental specialists. We know of no other firm in the nation that exclusively serves local governments that has such a team with such all-round experience.

This depth and breadth of talent and experience enables us to ‘level the playing field’ for communities in their dealings with telecommunications service providers and applicants. They find that for the first time they are truly able to deal with the industry as equals, thereby reversing the historic roles, making the local government the proactive and controlling party."

I feel fortunate to have spoken with Mr Colmi for at least an hour about this tower. Though he couldn't give me specific guidance on how to stop this pole, he did give me a lot of great information about the cell tower industry.

One of the most shocking statistics he gave me is the average income one cell phone carrier on one site can generate is $2250 per day! That's $800,000 a year for each cell carrier! This tower means big money for AT&T. I don't believe for one minute that AT&T hasn't already been out shopping other carriers to rent on their monopole, as they intimated to the City of Duluth.

Mr Colmi also told me that most cities don't have a plan in place to control the expansion of cell towers in their areas. Cities could be bringing in big revenue in many ways from these towers. I tend to believe that this tower will not benefit the City in any way.

This site should be taxed as commercial property, I wonder if it is? Cell phone companies are not tax exempt like other utilities. Mr Colmi said that most communities do not know this and do not tax properly. You can bet I'm going to check the property records and raise a stink if it's not!

The City should be identifying back taxed sites where they will allow cell towers, that way the taxpayers could benefit from the leases on the land. One lease that the Center was able to negotiate brought in $2.8 million dollars for a 30 year lease!

The City should have an application fee in the range of $5000 for a new cell site and $2000 for a site on an existing tower. Why? Well, we have to keep records at the city, someone has to review plans, our city council and planning commissions have to review it...who pays for all that? I wonder what Duluth's application fee is, this is something I haven't dug into yet.

Mr Colmi's company works with local governments to implement all of these things. I passed all of this information, including links to the website, to the City Administration. Do you think they will actually do something with it? I have my doubts.

I have talked with many people about this cell tower since the article in the paper. Friends mostly, people who share my views. But there are a few people who have questioned my reasoning, and my passion for stopping one tower.

One of the arguments was at a New Years party. A couple of friends were praising my activism and asking about the issue further. We had a great discussion about all of the steps a person goes through to try and stop city hall. One of my friends was listening and finally asked, “You know that cats kill more birds than cell towers, why are you going after one cell tower?” I answered, “I know that cats kill thousands of birds, and birds hit windows in bigger numbers too. But I didn’t choose that battle, and the fact that you are aware of that issue means that SOMEONE is fighting it! I saw that no one was objecting to this tower and I chose to speak up.”

Some people believe this tower will not be an issue because it is under 200 feet.
Research provided to me from a Doctoral candidate at UMD shows that the majority of birds flying during daytime are flying much lower than is usually assumed:

“these birds are generally flying low (within 100m of the
forest canopy).”



So the majority of the birds are flying between the treetops and 328 feet above the treetops. This monopole will project at least 100 feet above the trees. This area is mostly Poplar, which average 50 – 80 feet high. Stick a pole 100 feet above that with four big dish type antennas on it, add the enormous numbers of birds that pass through this area, and you have a perfect opportunity for at least some to become victims.

The other problem with this site is are the enormous numbers of birds that pass through it in the fall and spring.

Here are some totals from Hawk Ridge counts sent to me by Anna C. Peterson, PhD Candidate Conservation Biology, Natural Resources Research Institute University of Minnesota Duluth

Total raptors 2007: 60412
Total raptors 2008: 61514
Total raptors 2009: 48853

Season high 2003: 201825

These numbers include significant numbers of Bald Eagles and Peregrine
Falcons. These raptor species and many other non-raptors are on the
MN DNR's list of Species of Greatest Conservation Need

Many of these birds are SGCN and help make the North
Shore one of the most concentrated passerine (songbird) migrations in the
interior U.S.

Nonraptors totals from HRBO:
2008: 160,000+ (I don't have individual numbers)
2009: 126404 (including 4632 Rusty Blackbirds, ~19,000 warblers,
~23,000 robins)
These numbers are from Karl Bardon, HRBO counter.

Common Nighthawk count (2009): 13,000+ in 3 days


I've heard arguments that birds have great eyesight, this is true, especially of the raptors. BUT, when you design the tower to blend in with the landscape, add rain, or fog, or very low clouds at night (which is actually when most songbirds migrate to avoid being eaten by the raptors who migrate in daylight) you will likely have birds hitting this tower because they had no chance of seeing it. Birds are not stupid because they hit the tower. Put a cement barrier in the middle of any freeway, make it blend in, and see if people can avoid it on a dark night, with fog and rain. Are they stupid, or was it stupid to put it THERE?

This is the description of this specific area from the Minnesota DNR website:

“This is one of the most important and visible migratory corridors for songbirds and raptors in the entire Midwest as birds pass along the North Shore and over Hawk Ridge every fall.”

Speaking up was just the beginning. I didn’t really think that one email to the City Council and one letter to the local newspaper would lead to months of working on this issue. I am learning the ins and outs of cell tower siting, learning a lot more about the North Shore migration, and learning how to communicate my position so that others might be persuaded. I’m hoping that it doesn’t all end with a “Wall of Shame” website where I post pictures of the dead birds alongside pictures of the bureaucrats who didn’t listen.