Subject: Challenge to FCC over Georgetown Tower (fwd)
Date: Wed, 12 Aug 1998 092419 -0500 (CDT)
From: "Roy L. Beavers" <rbeavers@llion.org>
To: emfguru@hotmail.com
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=2E....Marty's letter below is full of good information.....However,
I regret to say that (in my opinion) he should be taking the
bureaucracy to court rather than writing nice long informative
letters ... which will be read by people already "predisposed" to
"take care" of their special interest friends and not the Public.....
=2E....guru......Thanks Marty!!!......
---------- Forwarded message ----------
Date: Tue, 11 Aug 1998 15:22:28 -0400
From: Marty Tennant
To: "Roy L. Beavers"
Subject: Challenge to FCC over Georgetown Tower
Roy,
This is a long letter to the Advisory Council for Historic
Preservation that we will be sending soon. I wanted you to see how
the FCC, SCANA and the SC State Historic Preservation Office have
completely ignored the law and the manner in which Section 106 reviews
take place. The FCC slipped a concurrence letter to the ACHP, and now
we must get the ACHP to correct their error.
I don't know if you want to send it to the list or not, as it is very
specific in it's thrust.
Marty
+++++++++
August 11, 1998
Mr. Don L. Klima
Director - Office of Planning and Review
Advisory Council on Historic Preservation
Old Post Office Building
1100 Pennsylvania Avenue, NW, Suite 809
Washington, DC 20004
Dear Mr. Klima,
Thank you for the opportunity last week to discuss the proposed SCANA
Communications, Inc. tower in Georgetown, SC.
As you have belatedly discovered, I communicated with Martha Catlin
of your office immediately after the SC SHPO issued it=92s conditional
no adverse affect determination. I provided Martha with additional
information about this project and qualities of the Georgetown
Historic District that were not contained in the record.
Unfortunately, you and Mr. Wallace were not aware of this information,
even though I made an effort to communicate with both of you at the
same time or prior to my contact with Ms. Catlin (see attached email
copies).
Based upon these unfortunate turn of events, I must now formally
request you to reconsider the concurrence of your office with the no
adverse effect determination, as requested by the FCC on June 15,
1998.
As the record below will show, the determinations made by the SC SHPO
and the FCC have not been made in accordance with law, involve
determinations not within the SHPO=92s expertise, are internally
inconsistent and are not supported by the SHPO=92s past determinations
involving historic districts and telecommunications towers. Also,
other evidence shows that the Section 106 review process has not been
initiated at other historic properties in the Georgetown area. This
indicates compliance problems within the FCC and their rules
implementing the National Historic Preservation Act.
I. Not Supported by Other SHPO Determinations
We have confirmed that the SC SHPO is on record opposing less
intrusive towers being placed in proximity to two National Register
Districts in Columbia, SC. In the first instance, a tower was
proposed for placement near the Elmwood Park Historic District in
Columbia. The SHPO opposed this tower, and even refused a
modification by the applicant to make the tower look like a simulated
tree. It should be noted that this tower, because of its height,
would not be required to have bright white flashing lights on it, as
would the proposed tower at the end of Front St. in Georgetown. (See
attached letter dated November 16, 1994 from Mary W. Edmonds to Mr.
John Hoefer and Mr. Gary Pennington)
The second instance involves a tower that was erected near the
Cottontown Historic District. Apparently this was a Nation Register
eligible property at the time the tower in question went up. I have
recently confirmed via telephone with Nancy Brock of the SHPO that
they were involved in the decision to have this tower removed. (See
State Newspaper clipping attached.)
These conflicting determinations give the appearance that the SHPO is
opposed to towers near historic districts in Columbia, SC, but that
residents in Georgetown, SC are apparently not deserving of the same
protection.
II. Not Supported by Law
36 CFR 800.9 Criteria of effect and adverse effect.
(b) An undertaking is considered to have an adverse effect when the
effect on a historic property may diminish the integrity of the
property's location, design, setting, materials, workmanship, feeling,
or association. Adverse effects on historic properties include, but
are not limited to:
(3) Introduction of visual, audible, or atmospheric elements that are
out of character with the property or alter its setting;
The SHPO did not follow the above criteria for determining adverse
effect, in that all the evidence in this case points to the tower
introducing visual elements that are out of character with the
Georgetown Historic District and altering its setting. This adverse
effect has been testified to by letter and petition from citizens,
Historic District homeowners, members of the Georgetown Historical
Society and Front St. business owners. The tower will take away the
only clear view down Front St. and introduce a 240 ft. lattice tower,
antennas, microwave dishes and flashing strobe lights into the
character of the Historic District. These elements are totally out of
character with the Historic District.
The City of Georgetown has previously spent substantial taxpayer
moneys to enhance the Front St. business district. These efforts
include the removal of utility lines and poles and extensive
streetscaping. After all of these efforts to enhance the Front St.
area, this tower will undoubtedly be a step backwards in the efforts
to preserve the character of the Historic District. It is ironic that
the telephone lines and poles removed to enhance the character of
Front St. are proposed to later be replaced with an intruding and
unsightly wireless equivalent.
III. Unsupported Conclusions and Flawed/Insufficient Evidence
The SHPO is not an expert agency on telecommunications technology,
yet made a bold statement, in their June 2, 1998 determination
letter, that they =93view the tower as a temporary structure=94 that =93may
well be obsolete in five to ten years=94. This is not supported by any
other corroborating analysis or expert opinion.
The SHPO also determined that a tower constructed at any other
location in the City might still be visible from the historic
district=94. In actuality, this is not the case, due the heavy tree
cover over the historic district, except for this end of Front St.
where the proposed tower would be located. In fact, the best place
you could select for insured visibility of this tower from the
Historic District is the exact location that is proposed.
The SHPO, in a May 15, 1998 letter to Mr. Gary Pennington, requested
that SCANA =93please provide computer-enhanced photographs showing the
tower as it would look from Front Street in front of the Rice Museum
and in front of the Kaminski House=94. However, in their June 2, 1998
determination letter, the SC SHPO stated that the =93[w]e found the
small-scale photographs to be somewhat misleading=94 and that they
believed =93the tower would have a more prominent profile than the
photographs indicated=94. This misleading submission did not, however,
prompt the SHPO to ask for more representative photographs that did
not mislead the SHPO.
The SHPO was also aware that the tower was required by the FAA to
have flashing white strobe lights during the day. SCANA disclosed to
the SHPO that these lights would flash 40 times a minute during the
day, yet the SHPO did not take these out-of-character visual elements
into their consideration of =93no adverse effect=94.
The SHPO also failed to consider the appearance of the tower as it
would appear in a fully loaded state. This tower has been designed to
support up to six wireless carriers and numerous microwave dishes.
The failure of SCANA to clearly show the tower in a fully loaded state
contributes to the SHPO determination that the photos were =93somewhat
misleading=94.
IV. Internally Inconsistent
The SHPO conditioned their =93no adverse effect=94 determination if SCANA
would agree to remove the tower if it ever became obsolete due to
improved telecommunications technology.
This determination is internally inconsistent, as it conditions the
=93no adverse effect=94 determination upon an agreement to remove the
tower in question in the future. Either the tower has an adverse
effect now, or it doesn=92t. If it doesn=92t have an adverse effect, why
worry about its removal at some future date?
The state of telecommunications technology in the future has no
bearing on the proposed and immediate =93introduction of visual,
audible, or atmospheric elements that are out of character with the
property or alter its setting=94. This conditional =93no adverse effect=94
determination by the SHPO is internally inconsistent and is not
supported by law.
V. No opportunity for public hearings and public review of evidence
No public hearings have ever been held on this proposed project. In
conversation with Ms. Rose Crellin of the FCC last week, she advised
me that the FCC, because of its small size and limited resources,
expects the applicant, SCANA, to hold public hearings on this matter.
SCANA has never done so, and to my knowledge, has not intentions to do
so.
Our own Georgetown City Council also refused a formal public hearing
on the lease of the city property in question to SCANA, even though
all ordinances passed by the City include the possibility of public
hearings.
Prior to the determination of =93no adverse effect=94 by the SHPO, a
request was made for the SHPO to share the =93misleading=94 SCANA provided
computer-enhanced photos with the public via a public hearing. This
was never done.
Also, the Presidents of the Georgetown Historic District Homeowners
Association and the Georgetown Historical Society, along with myself,
individually requested to meet with the SHPO representatives during
their visit to the City on May 12, 1998. This request was never
acknowledged, and no meeting was arranged as requested.
We continue to request the FCC, the Advisory Council, and our
Senators and Congressman for a public hearing on this issue.
VI. SCANA and their Counsel Failed to Comply with the law
It was discovered, shortly after the proposed site was being prepared
for tower erection, that a Section 106 review process had not taken
place.
Mr. Gary Pennington, legal counsel for SCANA before the Georgetown
City Council and the SC SHPO, is one of the attorney=92s mentioned in
the attached SHPO letter regarding the Elmwood Park Historic District
in Columbia, SC. Ms. Nancy Brock of the SHPO stated that Mr.
Pennington had been before her office in the past regarding telecom
towers and historic districts. As such, Mr. Pennington knew of SCANA=92
s responsibilities under the Section 106 review process, but chose not
to have SCANA comply with them.
Additionally, SCANA, in their Environmental Assessment dated July 20,
1998, states they believe their actions are categorically exempt from
environmental processing pursuant to Section 1.1306 of the Commission=92
s Rules.
These FCC Rules requires environmental processing for:
Facilities that may affect districts, sites, buildings, structures or
objects, significant in American history, architecture, archeology,
engineering or culture, that are listed, or are eligible for listing,
in the National Register of Historic Places. (See 16 U.S.C. 470w(5);
36 CFR 60 and 800.) Note: The National Register is updated and
re-published in the Federal Register each year in February. To
ascertain whether a proposal affects a historical property of national
significance, inquiries also may be made to the appropriate State
Historic Preservation Officer, see 16 U.S.C. 470a(b); 36 CFR parts 63
and 800.
The law is clear regarding SCANA=92s responsibilities under the law,
but SCANA and their attorneys chose not to comply with it. They are
still denying their responsibilities to this date.
VII. No Section 106 Review of other Tower Locations in Georgetown
County
According to the SC SHPO, it appears that the Section 106 review
process has not been used on another tower location in Georgetown
County. This tower is actually located on Hobcaw Barony, a National
Register property once owned by financier and Presidential advisor
Bernard Baruch. The owner of this tower, BellSouth DCS, has been
contacted to confirm if the Section 106 review process was complied
with.
VIII. The Section 106 Review was not conducted according to law
36 CFR 800 (Section 106 Regulations) does not provide for the SC
SHPO dealing directly with the applicant SCANA Communications, Inc.,
in order to determine the potential for adverse effect. The FCC
(Agency Official below), and not the SHPO, is the entity that is
responsible for making determinations of effect. The SHPO=92s role is
to consult with and assist the FCC in this process, and not to make
the actual determination, as was done in this case. 36 CFR
800.1(c)(1)(ii) states, in part:
State Historic Preservation Officer. The State Historic Preservation
Officer coordinates State participation in the implementation of the
National Historic Preservation Act and is a key participant in the
Section 106 process. The role of the State Historic Preservation
Officer is to consult with and assist the Agency Official when
identifying historic properties, assessing effects upon them, and
considering alternatives to avoid or reduce those effects. The State
Historic Preservation Officer reflects the interests of the State and
its citizens in the preservation of their cultural heritage and helps
the Agency Official identify those persons interested in an
undertaking and its effects upon historic properties.
In this instant case, the FCC has not taken the lead role required by
law, and has allowed the SC SHPO to make unilateral determinations of
effect. This is clearly not supported by law, as a reading of 36 CFR
800.5(a) and (c) below shows.
800.5 Assessing effects.
(a) Applying the Criteria of Effect. In consultation with the State
Historic Preservation Officer, the Agency Official shall apply the
Criteria of Effect (800.9(a)) to historic properties that may be
affected, giving consideration to the views, if any, of interested
persons.
(c) When an effect is found. If an effect on historic properties is
found, the Agency Official, in consultation with the State Historic
Preservation Officer, shall apply the Criteria of Adverse Effect
(800.9(b)) to determine whether the effect of the undertaking should
be considered adverse.
Also, in this instant case, the letter dated June 15, 1998 from Gary
P. Schonman of the Wireless Telecommunications Bureau, to Raymond V.
Wallace of the Advisory Council, shows the FCC seeking concurrence
that the SCANA project would have no adverse effect on any properties
listed on the National Register. This letter does not appear to be
supported by law, as it appears to seek concurrence on a determination
that was not conducted by a responsible federal agency under the
Section 106 process and related regulations.
CONCLUSION
This instant case shows the unfortunate results of a federally
mandated historic preservation process that has not been followed. As
a result of this failure to follow the law, the FCC, the SC SHPO and
SCANA Communications, Inc. have all contributed to a situation that
requires immediate correction.
The first step in this correction is for the Advisory Council for
Historic Preservation to reconsider and withdraw their concurrence
with the FCC of no adverse effect for this undertaking, signed on July
17, 1998 by Mr. Raymond V. Wallace.
Respectfully requested and submitted,
James Martin (Marty) Tennant marty@sccoast.net
1204 Saville St. 843 527-4485 voice
Georgetown, SC 29440 843 527-7783 fax
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Archive provided courtesy of WaveGuide, http://www.wave-guide.org
Reprinted with permission of Roy Beavers, http://www.feb.se/EMF-L/EMF-L.html