Subject: (Hackett) Final Tower Appeal Update (fwd)
Date: Tue, 30 Mar 1999 031722 -0600 (CST)
From: "Roy L. Beavers" <rbeavers@llion.org>
To: emfguru <rbeavers@llion.org>
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---------- 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.
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