Adapted from an article by Henry Brean, Apr 10, 2021 | Original Arizona Daily Star article here.
Dispute in Dunbar Spring Highlights Emerging, Thorny Legal Issues of sWTFs Being Constructed in Tucson’s Residential Neighborhoods
Note:
- WTF = Wireless Telecommunications Facility of any size or any “G”.
- sWTF = So-called “small” Wireless Telecommunications Facility, which may be small in dimension, but can be large in maximum power output.
An AT&T cell tower — not co-located, at all — at North Stone Avenue
and East University Boulevard.
Nearby, AT&T has plans to build another sWTF pole,
atop the old Court Street Cemetery, which was closed in 1909.
Dozens of sWTFs — heavy-industrial equipment that pollutes neighborhoods and ruins the quiet enjoyment of streets — are being constructed in Tucson’s public rights-of-way — even in residential neighborhoods, to overserve cellular customers — with maximum power output that is often more than 25 million times higher than needed for wireless phone calls.
Tucson residents are now pushing back with substantial written evidence placed in the City of Tucson public record about the certain harms caused by these sWTFs: public safety, privacy and property value harms. Insufficiently-regulated construction of these sWTFs violate both federal and state Telecom laws. The dispute centers on the Tucson City Attorney’s “very loose interpretation” of the term co-location — which is the addition of wireless antennas on facilities that already have them. One Tucson neighborhood, now, has a seemingly unique complaint: putting up sWTFs on poles could disturb the bones of those buried beneath its streets and homes.
Grave desecration is a serious offense. It is one of several substantial objections being raised against a sWTF that AT&T wants to build in the historic Dunbar Spring Neighborhood, which was developed directly on top of one of Tucson’s first cemeteries.
Longtime Dunbar Spring resident Bradford Trojan said:
“The city already allowed the desecration of the cemetery 100 years ago. It’s pretty simple: Don’t disturb the dead.”
Here is some history:
- The Court Street Cemetery opened in 1875 and eventually grew to cover about eight city blocks from Second Street to Speedway and from Main to Stone.
- The Court Street Cemetery closed in 1909 — replaced by what is now the Evergreen and Holy Hope burial plots — but fewer than half the graves were moved before homes and businesses were constructed in the area.
- Homer Thiel is a research archaeologist with extensive knowledge of the old cemetery and its history. Desert Archaeology, the consulting firm where he works, has been involved in processing about 25 old graves that were unearthed in the neighborhood by chance or during past utility projects.
Thiel said AT&T’s cell pole site on Ninth Avenue between First and Second streets is in the old Catholic section of the cemetery, where roughly 6,000 people were buried and each residential lot now sits atop between 90 and 100 graves.
Thiel continued:
“They [AT&T’s agents] have to be very careful with how they dig the hole for the pole. There’s a high chance they could strike a grave.”
AT&T’s permit with the city requires the company to have an archaeological monitor on site and halt the work at the first sign of historical relics. The Dunbar Spring Neighborhood Association and the Dunbar Coalition have sent letters to the city opposing what would be the first sWTF to be built in their historic neighborhood. The coalition is overseeing the development of the Dunbar Pavilion, an African American center for art and culture on the campus of what was, until 1951, the segregated, all-black Dunbar School at Main Avenue and Second Street.
The coalition’s March 17 letter references the abandoned cemetery and what came after it. The letter states:
“This tower, and other towers being installed in predominantly or historically African American and Hispanic neighborhoods, are a threat to public safety, privacy, property values, and quality of life.”
AT&T’s sWTF pole is slated to go in just a few steps from the front gate of the house Trojan and his partner, Amanda, have shared for the past 20 years or so. “It’s pretty much where the mailbox is,” Trojan said.
The city issued a permit for the pole in 2019. The specifications call for the sWTF to be 35 feet tall and designed to double as a street light someday, though city officials said there are no immediate plans to install and activate the light. Trojan doesn’t really want a streetlight in front of his house, either, but he’s most upset about having cellular equipment so close to his front door.
Trojan doesn’t trust 4G/5G antennas or those responsible for regulating their safety:
“I don’t feel comfortable living 20 or 30 feet from a cell tower. Pretty much nobody wants that.”
Trojan also has personal knowledge about adverse effects on public safety, privacy and lowered property values. Trojan, who is, ironically, an AT&T customer, said
“I’m aware that HUD classifies (cell towers) as a hazard and a nuisance.”
Bradford Trojan, a resident of Dunbar Spring Neighborhood,
stands next to the site where a cell tower is expected
to be built in front of his home.
AT&T spokesman Dale Ingram couldn’t offer any details about the specific project in question, but he said in general the company’s so-called “small cell deployments” are designed to “alleviate network congestion in high-traffic areas.” Sites are chosen based on “several factors, including the capacity needs of our customers and the availability of suitable structures to place the antennas,” Ingram said.
Yet, the federal law, the 1996 Telecommunications Act (1996-Act) and 24-years of US Federal Court Appellate Rulings in the Ninth Circuit (the one in which Tucson is located) says nothing about capacity. The laws clearly say that the burden of proof is on the Wireless carrier to prove that a significant gap coverage exists in the carrier’s telecommunications service (the ability to make an outdoor wireless phone call). If no such gap is proven, there is no federal preemption to build such a sWTF.
Also, the 1996 TCA Conference Report (recognized as Federal law by the US Supreme Court in 2005 in Palos Verdes v Abrams) says:
“the conferees [our elected US Senators and House members] do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor’s 50-foot tower in a residential district.”
This principle was even admitted to by the Federal Communications Commission (FCC) in front of a three-judge panel in the US Court of Appeals Ninth Circuit as recently as Feb 10, 2020:
Scott Noveck, FCC Attorney on Feb 10, 2020 argued:
“The Order doesn’t purport to prevent localities from addressing reasonable aesthetic requirements. In fact we say in the small cell order that aesthetic requirements are permitted . . . a locality could say if a 50-foot pole would be out of character with the surrounding neighborhood, you can’t put up a 50 foot pole.
What is Going On In Tucson’s Ward 6?
Unfortunately, Ward 6 City Councilman Steve Kozachik, Dunbar Spring isn’t the only Tucson neighborhood impacted by the sWTF proliferation, and there’s not much the city can do about it, other than ask the applicants to demonstrate that they’ve exhausted all other possible locations before moving forward with installing a new pole for a sWTF, which is not co-location per the State Telecom Law, HB.2365.
Clearly, what Kozachik offered is not all the City can do about this. On Feb 23, 2021, the City Council directed the City Manager to revise the City’s Wireless ordinance, Tucson residents responded by writing and submitting on March 24, 2021 a more protective Wireless Ordinance that is consistent with both State and Federal Telcom law: The Tucsonans’ Wireless Telecommunications Facilities Ordinance, which all can read here.
A state law passed by the Legislature in 2017, HB.2365, effectively requires municipal governments to approve the collocation of sWTFs in public rights of way if the sWTFs are constructed and operated in a manner that delivers actual public safety — which the 400+ sWTFs currently littering the streets of Tucson do not. Each of these poles require a retrofit to swap out dangerously over-powered equipment, in order to reduce the maximum power output and deliver all three of the following:
- Adequate telecommunications service
- Actual public safety and
- Quiet enjoyment of streets.
At present, the sWTFs in Tucson are over-delivering [1] and not delivering [2] or [3].
Kozachik expects thousands of the poles to be built throughout the community in the coming years. Kozachik, instead, needs to read the laws more carefully and readjust his wreckless statements because he took an oath to deliver actual public safety to the residents of Tucson.
According to city records, some 549 permit applications for small-cell facilities have been filed since 2017, most of them from AT&T and Verizon. And more than 400 of the poles have already been built — or are in the midst of construction — across Tucson.
“These things are just ruining the aesthetics of the city,” Kozachik said.
. . . and ruining the quiet enjoyment of streets.
Fellow Tucsonsans, it is high time to fix this problem with the Great Retrofit of 2021: swapping out the heavy-industrial antennas and power supplies — which, collectively, can be the size of a full-size refrigerator (over 30 cubic feet per sWTF) — for much smaller and less-powerful wireless equipment, more similar to the size of a home Wireless Router (about 1 cubic foot per sWTF).
Kozachik added that his efforts so far to get the new cell equipment “co-located” on existing utility towers, light poles or sign posts have been largely ignored or derailed by bureaucratic nonsense. City records show that of the small-cell facilities permitted so far, none have been installed on even one of Tucson Electric Power’s poles, .
Bingo. The Tucson City staff is to blame. . . but City staff reports to City Manager, Michael Ortega . . . and . . . Ortega reports to the City Council . . . so . . . without question — THE BUCK STOPS with the following elected representatives of the people:
- Regina Romero, Mayor
- Lane Santa Cruz, Ward One City Council Member
- Paul Cunningham, Ward Two City Council Member
- Karin Uhlich, Ward Three City Council Member
- Nikki Lee, Ward Four City Council Member
- Richard Fimbres, Ward Five City Council Member
- Steve Kozachik, Ward Six City Council Member
The truth — and the assignment — is very clear, Mr. Kozachik. Either solve the problem, or Tucsonans will choose another person — in the upcoming election — who will solve the problem.