FCC halts construction of Planer Hill cell tower

Tuesday, April 13, 2010 ~ Updated 10:09 AM

EUREKA SPRINGS -- The Federal Communications Commission (FCC) has moved to stop a cell tower from going up on Planer Hill until an investigation is completed into how Smith Communications LLC got its permits from the city of Eureka Springs and the FCC.

"On Friday we issued a temporary stop work order on the tower as we look into the matter," said Matt Nodine, chief of staff for the FCC Wireless Communications Bureau, Washington D.C. in a Tuesday morning phone call to the Lovely County Citizen. "That is all we have to say about it at this point."

The concrete foundation for the controversial Smith Communications LLC cell tower on Planer Hill was poured last Friday. Dave Reynolds, project manager, Smith Communications LLC, Fayetteville, said in a phone interview Friday that they expected to erect the cell tower in three days this week, weather permitting.

But cell tower protesters apparently found fertile ground with the FCC. A local group called CACTUS (Citizens Against Cell Towers Utilizing Smith) has been raising questions about how Smith obtained permits that allowed construction of the tower located in the Eureka Springs Historic District.

CACTUS alleges that Smith Communications claimed to the Arkansas Historic Preservation Program (AHPP) that the City of Eureka Springs had requested to be a client of the cell tower in order to improve emergency communications. But the city had no such agreement with Smith Communications, according to a statement made by Mayor Dani Joy at a Planning Commission meeting on Sept. 10, 2009.

'Form' letters not binding

Joy said at that meeting neither she nor City Council had been approached by Smith Communications regarding the cell tower. She said the police chief and assistant fire chief signing form letters from Smith didn't mean the city had agreed to put emergency communications on the tower.

Reynolds said he considers letters signed by Police Chief Earl Hyatt and Assistant Fire Chief Nicolas R. Samac to constitute an agreement with the city. The letters had identical wording stating that public safety communications for their services "is severely limited by the lack of an effective tower location in the city. ... The proposed communications tower offers a significantly increased footprint of coverage, and according to radio propagation studies will greatly reduce dead spots of our current systems."

The letter expressed support for the tower, but did not discuss any contract or formal agreement with the city for communication services.

Ken Pownall, a member of CACTUS who was chairman of the Eureka Springs Planning Commission until recently, said that in the many years of attending council meetings in Eureka Springs, he never once heard council asked to address the issue of lack of effective communications for emergency services.

Adequate coverage exists

"The basement of City Hall is the only place in Eureka Springs I haven't been able to get cell reception," Pownall said. "There never was a lack of reception, and never a discussion by the council about the lack of reception for emergency services."

Pownall also said Smith Communications has admitted it wrote the letters that were signed by the police chief and assistant fire chief.

CACTUS claims the letters from the police and fire chiefs were not a legally binding contract with the city, and only the mayor and council can enter into such contracts.

Reynolds disagrees.

"They had submitted those letters to the commission and to us, everyone," Reynolds said. "We want those letters to stand on their face. No one else seems to think that is a problem. No one has approached us with any of this. I don't know what they are talking about. We've not had contact with these people (CACTUS)."

AHPP snookered?

Frances McSwain, director of AHPP, said in an email to a member of CACTUS that AHPP would not have issued a finding of "no adverse effect" on the Eureka Springs Historic District for the cell tower if it had known the city did not have a contract with Smith for emergency communications.

"We had no information regarding an offer of space on an existing tower," said McSwain, who recommended concerned citizens appeal the decision to the FCC.

"We recommend that you appeal this matter as quickly as possible, as construction on this tower is proceeding at a rapid pace," McSwain said. "It is important that you ... forward to us (and FCC as well) the information you have of the availability of space on an existing tower."

After the city denied the cell tower permit, they were faced with a lawsuit by Smith. The city settled that lawsuit after being told they were required to allow the cell tower because there were no other existing alternatives to improving gaps in coverage and the land was properly zoned for cell towers. However, there is another cell tower nearby outside of the Historic District.

Alternative tower exists

Eureka resident Joel Taylor and Neil Wiser, president of Delta Towers Inc., Parker Colo., own a cell tower behind the 1st National Bank of Berryville on Hwy. 23 south of US62 that is less than a mile from the Planer Hill site.

Wiser said Delta Towers was purchased from the 1st National Bank of Berryville and structurally reinforced at their expense in 2000 to accommodate the cellular equipment of AT&T's affiliate TeleCorp.

"This was done to avoid building a new tower in or on top of the historic district of Eureka Springs, as one of my partners is a full-time resident of Eureka Springs," Wiser said. "We actually care about the aesthetics of Eureka Springs. We have not been approached by the City of Eureka Springs for the placement of any emergency services antennas and transmitters, but would be happy to accommodate their needs at no charge. We believe this is an alternative that should have been considered by the applicant or the reviewing agencies prior to approval of an additional tower."

Wiser said coverage from their tower is almost identical to one at the Smith Communications site. Delta's tower is 195-feet tall at a ground elevation of 1,496 feet for a total height of 1,671. The permit for the Smith cell tower indicates it is a 195-foot tower at a ground elevation of 1,443 feet for a total height of 1,638.

Alternate tower free to city

"The city was on our tower at the time we bought it, but then they removed their equipment some years ago," Wiser said. "We never heard from them since about wanting to enhance emergency services and potentially reinstall their equipment on our site. The city has never contacted us with a request to use our tower. It was a mystery to us that they wanted to enhance emergency services downtown. We would make space available on our tower at no cost if it were needed to enhance communications in the area. I think it would do a darn good job of it."

Wiser said while the sites are not identical, the coverage provided would be highly overlapping and very similar.

"I think the city somehow got bullied into this," Wiser said. "There seems to me to be lots of good land use rationale for not allowing towers in these historic parts of the city when there may be existing infrastructure options."

Historic District status?

Pownall said without a finding of no impact from the AHPP, the Eureka Springs Historic District Commission would have had grounds to reject approval for the cell tower because of the harm it might cause to the city's Historic District status -- potentially causing the status to be lost.

According to Pownall, the FCC requires cell towers to have customers under contract prior to receiving a permit for a cell tower.

"In this case, the FCC was told the city was the anchor lessor when the mayor had no knowledge of the contract," Pownall said. "Smith said it was acting on behalf of the city, but the police chief and assistant fire chief weren't in a position to act on behalf of citizens in this manner."

Pownall also says the Planning Commission was steam rolled into rezoning the property. The application to rezone the property from residential to commercial was based on owners of the property stating they wanted to build storage buildings there. But as soon as the rezoning became official, Smith Communications applied for a conditional use permit to put a cell tower on the property. No building permits have been issued for storage buildings at the site to date.

Pownall said if the property owners had applied for rezoning based on putting a cell tower on the property, it wouldn't have stood a chance of being approved.

After property has been rezoned, there are no laws restricting use to that stated in the application for rezoning.

Property owner feels betrayed

Raven Hill Derge, one of the members of CACTUS, said people feel betrayed.

"I love the historic district," Derge said. "Putting a cell tower in the historic district is just wrong. It is unnecessary. Smith forced their way in saying the cell tower was needed for emergency services. I don't think it is necessary."

Derge said she and her husband, who owns a house near the cell tower site on Judah St., discussed attending the Planning Commission meeting when rezoning was requested for the storage buildings. They didn't go, thinking it was an innocuous request.

Derge's husband bought the home to renovate it for resale. The couple is now concerned that the cell tower will kill their property values.

CACTUS also maintains that since the city previously denied cell towers in the city, it didn't have to allow one on Planer Hill. Former City Alderman Eric Scheunemann said in a recent column in the Lovely County Citizen that during his first term on the Eureka Springs Planning Commission, they successfully denied and rejected a proposal to build another cell phone tower in Eureka.

Placement is discretionary

"The 1997 Federal Telecommunications Act mandates that we can't prohibit cell towers within the city," Scheunemann said. "However, we can determine their placement. Since we already have cell tower placement within the city, we comply with existing law. With this, additional towers may be rejected."

CACTUS maintains the FCC clearly states unless there is a significant gap in coverage, new towers don't have to be allowed.

Pownall said another concern is that the city doesn't have the capacity to determine if correct engineering has been done to make sure the site will support the cell tower, nor does the city building inspector have the specifications to make sure the tower is installed according to FCC requirements.

Mary Ann Pownall said CACTUS is not a vigilante group; it just wants the facts to be known.

"Eureka Springs really needs to take a position to be prepared for future deceptions like this that just occurred," Pownall said.

The group has 162 hard copy and 280 Internet signatures of residents

opposed to the cell tower for a total of 442. The petition can be

found at http://eurekaspringscell.info/.

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