Source: Sherman Publications

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Orion Township’s hands tied on cell phone tower decision

by Lance Farrell

October 24, 2012

Orion Township can hear you now.

For months, some Orion Twp. residents have been voicing concerns over a proposed Verizon cell phone tower. The 145-foot monopole will be constructed at the corner of Baldwin and Waldon roads in southern Orion Township.

Despite some residents' objections to the tower, Orion Township has little to no discretion about the tower's construction since laws governing the installation are out of the jurisdiction of local municipalities.

Orion Twp. resident Michelle Parker went before the board on Oct. 15 to give voice to concerns several in her residential community have about the tower's alleged benefits. She appreciated the attention given to her objections, and said; "I like that they are looking into safety issues for the residents."

In Parker's opinion, the township would be better served if the tower were placed elsewhere. "I think they should put the tower on state property or property owned by the township," she said. Parker believes relocating the tower to public lands would circumvent the health, aesthetic, and associated property devaluation complaints raised by residents.

The board heard the complaints and planning commission recommendations at previous meetings, and elected to postpone the decision last week pending more review. They are expected to bring the issue before the board on Oct. 29.

According to Supervisor JoAnn Van Tassel, the board has little discretion in this matter, thanks to a 1996 Telecommunications Act which effectively pre-empts local control over the cell towers.

The Telecommunications Act denies municipalities' ability to decide the fate of the tower's construction based on aesthetic, health, or property-devaluation arguments. Aesthetic arguments are little more than a "not-in-my-backyard" stance.

Health hazard arguments remain mired in inconclusive results, and property devaluation is not proven and eclipsed by greater-good arguments.

Residents like Parker, who voluntarily lowered the selling price for her home by $25,000 last week, may disagree.

Township Zoning and Planning administrator Beth McGuire found no ordinance violations for the proposed cell tower. If the property were zoned differently there might be an issue, she said. Any setback ordinances governing residential areas are not in effect for the parcel on which the proposed Verizon tower will sit.

Even though the decision is largely out of her hands, Supervisor Van Tassel said she thinks it's a good thing that residents of Orion Twp. are so interested. Thanks to citizen input, many items of concern have been brought forward that were "incumbent upon the planning committee and the township to take into consideration," she said.

For example, citizen objections led the township to authorize an independent needs assessment study initially financed by the township.

Conducted by an independent radio frequency engineer, who does work only for municipalities, the survey corroborated Verizon's claim of need for additional cell towers to fill gaps in their coverage.

MIchelle Gilbert, public relations manager for Verizon in Michigan, Indiana, and Kentucky, said this week that the phone company will pay for the study authorized by Orion Township. The cost is estimated to be between $5,000 and $8,000.

For their part, telecoms like Verizon are also constrained by the 1996 Act. They are compelled to continually upgrade and improve their network or lose their ability to compete in the market. In making their case, representatives for Verizon have dealt with the township in "an appropriate manner," Van Tassel said.

West Bloomfield faced a similar situation recently. After a three-year legal battle with T-Mobile, their attempt to deny the tower was upheld by the U.S. Sixth Circuit Court of Appeals in Cincinnati because the township failed to support its denial with "substantial evidence in a written record."

A U.S. District Court judge in Detroit initially ruled in favor of T-Mobile but West Bloomfield appealed to the U.S. Sixth Circuit Court of Appeals, which upheld the lower court's decision against West Bloomfield.

The West Bloomfield board had denied T-Mobile's request on grounds that the tower was not located or designed "to be harmonious with the surrounding areas," and because they thought a shorter tower would have worked as well.

However, both reasons were unsubstantiated, the courts ruled.

The costs to West Bloomfield Twp. taxpayers to fight the tower were substantial over the three-year period.

The Orion Twp. board finds themselves caught between residents' wishes and following the law.

They want to respond to local wishes, and so have entertained citizen testimony throughout the process.

But the 1996 Act curtails local governance in the interests of larger good to be met. The Act clearly states that no "State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions."

Accordingly, Van Tassel and the Orion board seek to comply with the law, as well as avoid an expensive and futile legal battle with Verizon, such as West Bloomfield Twp. recently went through.

But, Parker has little patience for the constraints the township faces.

She said she has read of alleged dangers caused by exposure to radio frequencies and has watched videos that she claims are depictions of disabled cell phone towers falling. She also claims her efforts to sell her home may diminish.

"I want safety parameters put in place to protect us. And if they don't exist, I'm going to be very upset and wonder why the township has been negligent and ignored this issue. If the parameters do not exist to protect the citizens in Lake Orion, it's a problem."