Subject: (Doherty) RE (Hackett) Final Tower Appeal Update (fwd)
Date: Tue, 30 Mar 1999 115744 -0600 (CST)
From: "Roy L. Beavers" <rbeavers@llion.org>
To: emfguru <rbeavers@llion.org>
--------------------------------------------------
......There is an "idealism" in how Americans perceive the working of
their government ... and then there is the "reality." In this exchange
of messages, I suggest, we have seen both!.......guru......
Roy Beavers (EMFguru)
rbeavers@llion.org................
...It is better to light a single candle than to curse the darkness...
.................PEOPLE ARE MORE IMPORTANT THAN PROFITS...............
.......DO YOU KNOW OF OTHERS WHO SHOULD BE ON THIS LIST??????...........
---------- Forwarded message ----------
Date: Tue, 30 Mar 1999 09:24:02 -0800
From: Jim Doherty
To: "'cof@ime.net'" ,
"'rbeavers@llion.org'"
Subject: RE: (Hackett) Final Tower Appeal Update (fwd)
Response to George Hackett
C'mon, George! Cool off. You lost your battle, but there are many more
to fight. The reality is that local government is FAR more responsive,
in general, to the public's fears, frustration and anger over wireless
antennae siting issues. At the state and national level there is a lot
of high stakes lobbying going on. That's where the telecom companies
focus their attention. At the local level money is not changing hands.
Most of the people on the city council are elected by their neighbors
and friends. Sure, a few go on to state or national political
positions, but most are there to "do the right thing" for the community.
They often make land use decisions after careful consultation with their
legal advisor to the community. The attorney is trying to keep the city
or town out of legal trouble. The decisions are not easy.
Until the majority of the public is convinced that wireless antennae are
a health hazard or aesthetic blight, they will continue to support
building up that part of our technological infrastructure. People like
their wireless phones. Our political system is based on majority rule.
Work on educating people about the problems with wireless technology.
When you have 51%support, you'll win ALL your battles. That's the
American way.
Jim Doherty
Municipal Research & Services Center
Seattle
-----Original Message-----
From: Roy L. Beavers [mailto:rbeavers@llion.org]
Sent: Tuesday, March 30, 1999 6:27 AM
To: valle-riestra@ci.walnut-creek.ca.us;
brian.moura@ci.san-carlos.ca.us; kkrouse@penn.com; treehug@epix.net;
penllrw@igc.apc.org; grantman@usaor.net; hk3219@ark.ship.edu;
gwwills@penn.com; kmedley@cub.kcnet.org; Waparty@democrats.org;
jdoherty@mrsc.org; ryuKubousky@mrsc.org
Subject: (Hackett) Final Tower Appeal Update
(fwd)
---------- Forwarded message ----------
Date: Mon, 29 Mar 1999 21:03:59 +0000
From: George Hackett
To: rbeavers@llion.org
Subject: Final Tower Appeal Update
Dear Members of the Outside Looking In Club;
I no longer have to wonder why our government in
Washington is so out of touch
with the American people, it starts at the local level.
Most of our Washington
Elite started their public careers in lower levels of
government, many in small
towns.
It is in the small towns where they learn how to
perpetuate the "good old boys
club" of back room politics. Although they are elected
by the people, they
represent a chosen few. Once their skills are honed,
they go on to State and
Federal careers. Bringing with them the small minded
politics that has never
served the public's interest.
There can be no greater example of political abuse and
back room politics then
the Board of Appeals in South Portland, Maine, on
Wednesday night, March 24,
1999. It was a blatant and arrogant demonstration of a
government that feels
no accountability to the taxpayers or the residents.
To our local government the law means nothing, as they
are free to do as they
please. While the people they are supposed to represent
can do nothing. No
local official will hold them accountable, their jobs
are never on the line,
they work for the "good old boys club," and not me.
What follows is a copy of a letter I sent to the mayor
and all council members,
after all, they are the only elected officials governing
the city. Beyond the
letter is the only real solution to tower proliferation
and the abuse of the
powerful wireless carriers.
An Administrative Appeal was filed on March 2, 1999, due
to the decision by the
City of South Portland to grant Mr. Quirino Lucarelli a
building permit for a
Public Utility Facility using Sprint PCS as fulfilling
the requirement for a
public utility. The appeal had nothing to do with the
decision to call the
tower a "Public Utility Facility" as was represented to
the Board of Appeals by
Code Enforcement, and by Mr. Christopher Vaniotis, the
attorney for Mr.
Lucarelli.
On Wednesday, March 24, 1999, the City of South Portland
Board of Appeals
denied my right to a fair and judicious process. In a
procedure that was
obviously pre-planned and well rehearsed, the Board of
Appeals dismissed my
administrative appeal without a hearing. Under no
stretch of the imagination
can you call anything a hearing when the appellant is
not given a chance to
speak.
The entire procedure took less then five minutes.
Chairman Mark S. Farrington
recused himself from the case stating that he had a
conflict of interest. But
he never divulged the nature of the conflict. Nor did
the rest of the Board
vote on his request to remove himself. Both are
required by law.
Board member Brian Hanlon assumed the chair. The gavel
came down and Daniel
Fortin instantly proposed a motion. He stated, "I am
making a motion to
dismiss this case immediately for the following
reasons:"
A. "Clearly the thirty day period in which one is
allowed to file an appeal
has passed."
B. "The applicant, Mr. George Hackett, does not have
standing in this matter.
He lives outside of the 500 foot notification radius as
required by our
ordinance. He has never voiced an opinion regarding
this matter at any city
meeting and therefore is unable to demonstrate that he
was ever in attendance
at any meeting."
C. "Where the South Portland planning had been ordered
to approve Mr.
Lucarelli's application by the court the last
opportunity to argue whether or
not this was a public utility and should be allowed
under South Portland's
zoning ordinance of special exceptions began on December
8, 1998. On that
evening the planning board heard and approved
Lucarelli's application.
Therefore the code enforcement officer has no other
avenue than to issue the
building permit."
D. "Finally, the board has to understand that if it was
to hear Mr. George
Hackett's appeal tonight it would be clearly violating
the law in that it would
in effect be changing the rules to alter the outcome
after the game has been
played in full."
"In addition the Board believed that the Code
Enforcement Officer had no choice
but to grant the building permit given the ruling of the
Maine Superior Court
dated March 5, 1998, docket number CV-96-1095,
Cumberland County."
This motion was passed with little to no discussion, and
only took several
minutes. Only Board member Thomas S. Coward voiced
opposition to the motion
and the "right to hear Mr. Hackett speak to the issues
raised." The vote was 5-
1 to dismiss the appeal.
As to item A of the motion to dismiss: The appeal was
based on the issuing of
a building permit by Code Enforcement on February 4,
1999. The appeal papers
were in fact filed in a timely manner. Since Mr.
Lucarelli had not fulfilled
his requirement for a public utility with someone other
then a public utility
prior to his request for a building permit, how could
anyone have known in
advance he would do so? Which would have made any early
appeal in fact
untimely.
As to item B of the motion to dismiss: There is nothing
in the ordinance that
states that someone living outside the notification
radius cannot appeal a
decision. That is an absolutely ridiculous statement.
Likewise, it is
completely untrue that I never voiced my opposition at a
meeting. The last
time I voiced my opposition was at the December 8, 1998
Planning Board meeting
when site plan approval was granted. I am clearly part
of the public record on
this matter.
As to item C of the motion to dismiss: The Superior
Court decision ordered the
City of South Portland to accept the site plan. No
where in the Superior Court
decision does it state that a building permit had to be
issued. No where in
the Superior Court decision does it mention Sprint PCS
by name. No where in
the Superior Court decision does it call Sprint PCS a
public utility.
As to item D of the motion to dismiss: The only
violation of the law that took
place on Wednesday night, March 24, 1999, was the Board
of Appeal's refusal to
grant me a hearing. If I so choose, a trip to Superior
Court would end in a
ruling that would force the Board of Appeals to give me
a hearing (like I could
get a fair hearing). Since there are three steps to the
approval process,
application, site plan review, and issuing the building
permit. The approval
of any one step does not mean that the "game has been
played in full."
As to the Boards assertion that the "Code Enforcement
Officer had no coice but
to grant the building permit," fine, but that does not
grant them theright to
break the law. By law I was entitled to a hearing. By
law the Code
Enforcement Officers decision can be questioned. This
is a matter of
accountability, for which the City seems to feel no
obligation to the taxpayers
or the residents.
For weeks, questions of the City's determination to call
Sprint PCS a public
utility had been avoided or simply ignored. The basis
for the appeal was
simply because the City felt no obligation to answer any
questions about the
subject, except in an evasive manner.
Since the City of South Portland ordinance contained no
definition of a public
utility, the staff needed to follow 1 M.R.S.A. of
Statutory Construction. By
common definition a public utility is a "monopoly." As
a monopoly, a company
yields to rate controls, methods of financing, must
service the public
indiscriminately, and extend services as needed. None
of which applies to
Sprint PCS. In fact, the PUC specifically says wireless
telecommunications
providers are not public utilities in the State of
Maine. That PUC definition
is part of Maine Law Title 35-A.
In a Superior Court brief submitted by Corporate Council
Mary Kahl on May 16,
1997, she stated that Mr. Lucarelli seeks approval of a
tower "to accommodate
the commercial interests of Sprint and the possible
future co-location of other
commercial providers." She goes on to say that "Mr.
Lucarelli is not simply
seeking to replace his existing tower with a whip
antenna for use in his
personal business, he is seeking to site a new 150-foot
commercial tower 900
feet away on a highly elevated portion of his property
in order to lease space
on the tower for commercial users to site their
antennae."
How can the City of South Portland go to Superior Court
claiming this to be a
commercial enterprise with commercial providers, and
then grant a building
permit by calling Sprint PCS a public utility? Which
once again, was the basis
for the appeal.
But the appeal process was tainted from the start.
First the City gave me no
information as to the process. By chance it was
discovered that the City would
do a mailing to all Board members, and that mailing
could include an argument
from the appellant. When this information was
discovered, there was less then
twenty four hours to prepare for the mailing. Then a
week later, the City did
another special mailing to Board members, this time
giving Mr. Lucarelli's
attorney a chance to argue against the appeal. The City
simply stacked the
deck as they demonstrated the fact they could do
whatever they felt was needed
with no accountability.
Code Enforcement stated in their mailing to the Board of
Appeals, that Sprint
PCS was a public utility because it provided
telecommunication services "which
are regulated by various government agencies." But
other then the FCC
assigning the bandwidth and frequency, there is no other
form of government
regulation. The assigning of frequencies is simply to
avoid the chaos of two
or more companies operating on the same channel.
As to providing telecommunication services being grounds
for calling Sprint PCS
a public utility, that definition would fit many
businesses. Including
Walmart, which sells cellular phones, offers cellular
service, and is regulated
by various government agencies. Like the Maine Bureau
of Taxation, Workers
Compensation, IRS, Social Security, and so on. Does
that make Walmart a public
utility?
I was also told by Code Enforcement that Sprint PCS is a
public utility because
they provide similar services. Similar in that it is
phone service, and Bell
Atlantic provides phone service. Northern Utilities is
a public utility that
sells gas. Gas stations sell gas, which constitutes a
similar service. Does
that mean all gas stations are public utilities?
Clearly this tower represents a commercial structure
being built to rent space
to private commercial businesses. By calling it a
public utility facility, and
by calling Sprint PCS a public utility, this commercial
structure will be built
in the middle of a Residential District A Zone. Where
it otherwise could not
be located.
The Telecommunications Act of 1996 is lovingly referred
to as the National
Lawyers Relief Act based on all the litigation it has
spurred across the
country. This piece of legislation was bought and paid
for through the
lobbying efforts in Washington. It seems to give
companies like Sprint PCS a
free pass to run rampant over communities and
neighborhoods nationwide. Without
the support of Sprint PCS, Mr. Lucarelli could never
have built his tower.
Only Cellular One has demonstrated a company policy
against such behavior. They
feel working with towns and siting equipment where they
are wanted is the only
policy that makes any sense. A Cellular One
representative publicly stated at
the October 8, 1996 Planning Board meeting that they
would never locate on Mr.
Lucarelli's tower, and that it quite simply was not an
appropriate location.
But when you have governing committees comprised of
appointees and not elected
officials, why should anyone be surprised when the
public's interest is
ignored. This is what perpetuates the "good old boys
club," and the back room
politics. The blatant actions of the Board of Appeals
on Wednesday night,
March 24, 1999, clearly and unequivocally demonstrates
this fact.
When a City feels free to stack the deck and ignore the
law, you have to wonder
if there is anyone minding the store?
Our only solution follows.
Members of the Outside Looking In Club, we are obviously
never going to be
supported by our local, state, or federal government in
this fight against
cellular proliferation. They have been given carte
blanch to trample our
neighborhoods, to ignore our ordinances, and to turn a
deaf ear to our requests.
What we need is a NATIONAL BOYCOTT of those companies
that operate without the
slightest concern for the people. Not only do we need
to make a pledge to
boycott, but we need to pledge to get four others to
boycott, and those four
need to pledge to find four more, and so on and so on.
Before you know it, we
can MAKE A DIFFERENCE! The boycott should last until
every last one of the
inappropriate tower locations is down, and the companies
attitude toward
proliferation changes.
There is little argument that Sprint PCS is by far the
worst. So the National
Boycott of the Outside Looking In Club starts with them.
We boycott their
service, and anything they sponsor.
I pledge to boycott, what about you?
George G. Hackett.
Thistle Hill Neighborhood Alliance
Member of - EMR Network
506 Thistle Hill Road
Marshfield, VT 05658
802-426-3889
802-426-3030 fax
thistle@sover.net
CITIZENS WORKING FOR VERMONT
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