Wary of legal threat, the Haines Borough Assembly has delayed a likely-illegal cell tower ban. Rather than take a final vote at its Tuesday night meeting, the assembly held the issue for further discussion.
The proposed legislation, to ban cell-towers in the townsite, and require they be 1,500 feet away from private property outside the townsite, came about two weeks ago when the assembly decided unanimously that a previous version of the legislation was not strict enough.
That version would have required cell-towers be located at least 1,000 feet away from any school, daycare, youth center, or playground.
The unanimous decision to advance the stricter ban to a final vote came despite warnings from companies seeking to place cell towers in the borough, and from the borough’s own attorney.
During discussions on those towers going back to early this year, representatives from tower and cell companies have told borough officials that such bans would be illegal under federal law — especially if they were on the basis of health concerns.
The borough’s attorney, Max Holmquist, also previously advised that the moves would likely risk a lawsuit, assembly members said two weeks ago.
The federal law that governs the issue, the Telecommunications Act of 1996, states as one of its provisions that local zoning authorities “shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”
Holmquist was on hand at Tuesday’s meeting, prior to what was scheduled to be the final vote on the ban. Speaking after representatives from cell-company GCI and tower company Atlas Tower, Holmquist echoed many of their points — that preventing companies from placing towers at all would be a violation of the Telecommunications Act.
Holmquist also confirmed that the borough was not allowed to regulate the health effects of cell tower frequencies.
“To the extent that the borough wants to create a large setback requirement, the purpose for doing so cannot be the effects of the (radiofrequency) emissions,” Holmquist told assembly members. “If a court determines that’s the purpose, the court could find a violation of (the Telecommunications Act).
At least one assembly member, Mark Smith, has explicitly stated those health concerns as the purpose for the ban during past meetings. He did so again Tuesday, and compared the Telecommunications Act to unjust laws, including ones that in the past barred women and Black Americans from voting.
“There are resources out there if we need them if (a lawsuit) really happens,” Smith said.
“Cell companies know this is harmful. They know one day… laws will get changed. I just want to get ahead of it right now,” Smith added, also with an appeal to the tower companies that “(the borough) is not worth your effort in a court of law.”
Other strict cell tower regulations or permit denials have been taken to court elsewhere. As Holmquist noted at the meeting, the Telecommunications Act contains a specific course of action allowing local regulations or permit denials to be challenged in court and “heard on an expedited basis.” There are multiple examples of this happening across the country, and local decisions being overturned, even in the last half-decade.
While no tower or cell companies have explicitly threatened a lawsuit against the borough, one called the proposed legislation explicitly illegal on multiple levels Tuesday, with Atlas Tower director of legal affairs Michael Powers referring to it as a potentially “costly mistake” for the borough.
Outside of Smith, there did not seem to be appetite among assembly members for a lawsuit. Assembly members Stickler, Thomas, and Forster expressed reservations about local taxpayers footing the bill for a legal defense.
“I encourage all of us to take heed of what our legal counsel is advising,” Stickler said. “In the past, when the assembly didn’t follow the lawyer’s advice, it cost us a lot of money and wasted a lot of time.”
“While moral courage, as Mr. Smith mentioned, is an upstanding ideal — that I agree with — we also have to follow the law,” she added.
The proposed ban does include an exception meant to protect from litigation. Under that exception, tower and cell companies may avoid the ban if they show they are addressing a gap in cell coverage.
Holmquist, however, said that if that exception was put into practice, it could make the ban unenforceable. Given the gaps in coverage in the valley, it could turn out to be quite easy to earn an exemption.
“I have to stand in one specific place in my home by one specific window so calls don’t get dropped,” Stickler said on the issue. “Do we have service gaps? Absolutely we do.”
After discussion, the assembly voted unanimously to avoid a final vote, and instead send the issue to the Government Affairs and Services Committee for further discussion. That meeting will take place on October 8, from 6:30p.m. – 8:30p.m.
Meanwhile, GCI and Atlas Tower say they won’t be pausing any of their tower-building efforts, even while the assembly continues to deliberate.
GCI is currently looking for private landlords to host a tower, company representative Tom Ditterick said. Once a landlord is finalized the company will apply for borough permitting, which the borough has 90 days to either approve or deny, according to the Telecommunications Act.
Notably, Ditterick said the previous version of the tower regulation before it was amended two weeks ago would have worked for the company. “We could make that work,” Ditterick said, about the previously-proposed 1,000-foot setback from schools, daycares, youth centers, and playgrounds.