Subject:  (Goldsmith) Re loss of local regulation of towers (fwd)
Date:     Sun, 27 Sep 1998 225700 -0500 (CDT)
From:     "Roy L. Beavers" <rbeavers@llion.org>
To:       emfguru@hotmail.com
--------------------------------------------------



---------- Forwarded message ----------
Date: Sun, 27 Sep 1998 09:17:32 +0200 (IST)
From: John Goldsmith 
To: "Roy L. Beavers" 
Cc: emfguru@hotmail.com, John Goldsmith ,
    Edward_Baron@judiciary.senate.com
Subject: Re: loss of local regulation of towers (fwd)

	The Air Conservation Commission of the American Association for
the Advancement of Science in 1965 considered an analogous situation
dealing with pollution of a parcel of air passing above privately held
property.  On p. 5 of its report, the Commission identified four basic
assumption of which the first is:  
     AIR IS IN THE PUBLIC DOMAIN:
     Such an assumption is necessary if air pollution is to be considered
a public problem, of concern not only to those who discharge the pollution
, but also to those who may suffer as a result.  This assumption does not
challenge the ownership of airspace over a parcel of land, but it does
exclude from property rights the flowing air which cannot be controlled by
the owner of the land, and which carries its pollution in whatever
direction meteorology and topography permit."
	I understand that this principle, having been cited in litigation, 
is considered a basis for legal precedent.  Of course with respect to radio 
frequency, it will need to be modified.
         John Goldsmith
     
On Wed, 23 Sep 1998, Roy L. Beavers wrote:

> 
> .......I wish to remind all that the floor manager in the Senate for the
> passage of the Telecom Act was Al Gore.....He did NOT 'have' to do that.
> He did it to get in on the VAST "largesse" of the telecom industry
> (which otherwise would have gone mostly to the Republicans).....That is
> our system......It will not change unless THE PUBLIC demands it.....
> .....guru....
> 
> ---------- Forwarded message ----------
> Date: Wed, 23 Sep 1998 17:46:18 -0700
> From: Bob Weiner 
> To: "\"Roy L. Beavers\"" 
> Subject: loss of local regulation of towers
> 
> Judge Rejects Fairfax Suit On Regulation of Towers
> 
> By Michael D. Shear
> Washington Post Staff Writer
> Wednesday, September 23, 1998; Page B07
> 
> Fairfax County's attempt to decide when and how cellular phone towers
> can be built on state property along highways has been rejected by a
> judge
> who said the county was trying to stick its nose where it had no
> business.
> 
> Circuit Court Chief Judge F. Bruce Bach said that because the towers in
> question are being built on land owned by a state agency -- the Virginia
> 
> Department of Transportation -- the county has no authority to regulate
> them.
> 
> "You know, I am very sympathetic to the county and the problems they
> have," Bach said in delivering his ruling last week. "But I just think
> that this
> is state property and the county can't put their nose in, right or
> wrong."
> 
> Fairfax officials had sued two cellular phone companies for erecting the
> 
> towers without county approval. So far, 16 such towers have been built
> on
> land leased to the companies by VDOT, and more than 100 are proposed
> along highways in Northern Virginia. Local residents often fight
> proposals
> for such towers, which can be hundreds of feet tall. But Fairfax
> complained
> that citizens and local officials have no chance to weigh in when the
> towers
> are built on state land.
> 
>  John Faust, a resident of the Timberly South neighborhood, expressed
>  disappointment about the ruling. A tower built on Timberly Lane and
>  opposed by area residents was at the center of the case.
> 
>  "There's a lot of [state-owned] land that's integral to local
> communities," he
>   said. "You just don't know what state agencies might do with this
> land."
> 
> Had the county won the lawsuit, the tower would have come down. Now,
>  Faust said, the neighborhood will have to learn to live with it.
> 
> "The community would look better without the pole and the building," he
> said, adding that he hopes the county will appeal to the Virginia State
> Supreme Court.
> 
> Fairfax County argued that private companies such as Bell Atlantic and
> AT&T should not enjoy the state's immunity from local regulation just
> because their towers are on state land. But in siding with the
> companies,
> the judge pointed out that the towers were also being used by VDOT for
>  traffic cameras.
> 
> The ruling "vindicates that we followed the proper procedure all along,"
> 
> said Chris Doherty, a spokesman for AT&T. "It was a bit of a turf war
> between the state and the county. Obviously, the courts decided the
> state
> was right."
> 
> County supervisors said they will discuss whether to appeal at Monday's
> board meeting.
> 
> "Your instinct says we better appeal it," said Supervisor Stuart
> Mendelsohn (R-Dranesville). "But on the other hand, we have to see
> whether we're likely to succeed."
> 
> Board of Supervisors Chairman Katherine K. Hanley (D) said the judge's
> ruling could have a significant effect on residents. "Citizens look to
> their
> local government to work to preserve their quality of life," she said.
> "They
> view a forest of towers as diminishing that quality of life."
> 
>                           © Copyright 1998 The Washington Post Company
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 




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Reprinted with permission of Roy Beavers, http://www.feb.se/EMF-L/EMF-L.html