The Mount Forest Case

There were so many things wrong with the permit surrounding the Proposed Mount Forest cell tower that it is a good example in what is wrong with the system. The permit was denied by the Examiner both initially and after reconsideration. Cingular appealed the decision to the County Council and the County Council affirmed the Hearing Examiner's denial. Now this case has set a precedent in Snohomish County. Cingular choose not to continue this battle in a higher court. The deadline has passed and the permit has been denied.

All the details of the case are provided in PDF form so anyone can use our case against Cingular or other wireless companies in future permits.

There are many reasons why Cingular's case was weak (just to name a few):

  • Cingular lied on their permit and still has not corrected intentionally manipulated evidence. They continued to try and build a case on this evidence.
  • We showed that Cingular did not look in alternate locations and we showed three locations that would serve more people, provide seamless coverage (their proposal would not) and not require any new tower be added to the area. (See map).
  • The proposed tower was not compatible with the area. The tower would have been in the downwind flight path for an existing private runway. The proposed tower would be located in the only area without overhead power lines (that already has Cingular service) to provide service to areas with above ground power lines, wetlands and deadend roads.
  • They testified that their proposed tower would require an additional tower to provide seamless coverage, yet they did not disclose plans for this additional tower. Our three alternate locations would not require any additional tower to provide better service to more people.
  • For this case, the applicant is required to provide the burden of proof for need and compatibility. They have not even come close to doing this, in fact, the Hearing Examiner stated in his decision that MFHA provided substatial evidence to the contrary. For Cingular to win, they would need to counter all of our evidence and show where they had already proven their case.
  • There is virtually no Public Need for this tower. Not one person has come forward in support of the proposed tower; in fact, there are hundereds that oppose it.

The Hearing

The hearing lasted two days (about a month apart), and was followed by additional evidence that Cingular was required to submit. The closing briefs from both sides are provided to give a summary of the hearing. Cingulars closing brief, and MFHA closing brief.

I should point out here that the planning department is not your friend! It is their job to be neutral and in a perfect world, they would be in search of the truth. In our case (and several others I was involved with), the Planner involved with the project was only interested in getting the tower approved (at all costs). This involved trying to mislead home owners and arguing points he had no business talking about (to the point the hearing examiner had to tell him to stop). This was apparent to all of us involved and was made clearer when at one hearing he totally changed his attitude because another county employee was taking notes (performance review would be my guess).

The Decision

The Hearing Examiner's decision is listed here.

The Reconsideration Request

Any applicant that does not agree with a Hearing Examiner's decision can ask for reconsideration. This is required before asking the County Council for an appeal. Cingulars reconsideration request amounted to three paragraphs equating to "there must have been an error and we would like to continue the case".

The Comments on Request for Reconsideration

The Hearing Examiner asked all parties of record for comments on Cingulars reconsideration request. The MFHA submitted comments on the request.

Cingulars Comments on their own Reconsideration Request

Cingular submitted a 14 page document for their comments on their three paragraph request for reconsideration. While the Examiners request for comments clearly allowed for Cingular to submit comments, suplementing or ammending their reconsideration request is not allowed by Hearing Examiners Rules or Snohomish County Code. It is clear that Cingular did not want others to respond to what they had to say and wanted to buy time thinking of what to complain about.

The Motions that followed

MFHA submitted a Motion asking that Cingulars comments be stricken.

Cingular replied with a letter claiming that what they did was legal.

MFHA clarified Cingulars letter by analyzing the details of the code.

Examiners Order on above motions and invitation to a third hearing (April 30th, 2003).

MFHA comments on Cingulars "Comments"

MFHA filed a letter commenting on Cingulars Comments (all these comments on comments get confusing). The Examiner granted us the right to respond to Cingulars 14 page comments before the third hearing. This document summarizes just how bad Cingular's case was and how much worse it is getting. They testified at the second hearing that they could not live with a shorter tower. After the Examiner denied the permit, they wrote that the 150' tower was more than enough and would lower the height to 130'. This comment was followed with the mention of raising the tower height at a later time. An excellent way to lose credibility!

The Final Hearing Examiners Decision

The Hearing Examiner made his final decision on May 15th 2003.

The County Council Decision

The council affirmed the examiners decision by unanimous vote on July 23rd, 2003.

The Council decision was reduced to writting on July 30th, 2003

Cingular did not appeal this decision to any higher court.

Why would Cingular want to place a tower here if there are better locations?

There are many reasons why Cingular would pursue this poor location when there are better options. Just to name a few:

  • Tower Company - Tower companies get money from leasing towers. The more towers, the more money they make. It is to their advantage to find locations that will require more towers, not less. Since tower companies do not have any rights granted by the FCC like a wireless company does, they often strike a deal with a wireless company to push the permit through. This applicaiton was started by a tower company.
  • Trash the Neighborhood
    • Once a tower of any height is installed, it is much easier to ask for a taller tower later. The argument that "it is either add another tower to the area or raise the height of this existing one".
    • Once a tower is placed in one part of a neighborhood, the compatibility argument is lessened. It is much harder to say you don't want a tower in a new location when there is one right next door.
    • Once a tower is installed, some people will move, others will give in. Those that move sell to someone who moves into the area with a cell tower. This new person is more likely to sign a lease for another tower. If you move or sell some of your property, make sure you add a covenant that says the property can't ever have a cell tower.
  • CYA - (Cover your A**) Someone may have made a mistake early on in the process. Since the consultants benefit from every permit they work on, there is no reason to re-think a bad idea. Sometimes people in big business will spend hundreds of thousands of dollars to cover up a $10,000 bad decision.
  • Mega Tower - The wireless company may have other thoughts on the permit application. Start with the tallest tower they think they can get approved, then put in a taller one later. If you don't care what the neighborhood looks like, you can provide wireless service to any area with 300' towers. If they can get away with it (you let them), it is just part of them doing business (they don't live in your neighborhood).
  • Tower Count - Wireless companies are valued by two things, towers and customers.
  • Try the Hardest First - Cingular is probably afraid that it will get harder to place towers in prime residential areas in the future. They probably hoped to set a precedent that would make it easier in the future. If this was their plan, it backfired. Now it will be more difficult for them to place a tower anywhere they want. The deck is stacked in their favor with the Telecommunications Act of 1996, but it does not give them the right to go to prime residential areas first and provide spotty coverage as they tried in this case.

This all sounds like a lot of work, but it has happened over the course of about a year and a half. Expenses are being shared among the neighborhood so they are not a big hardship on any one person. This case has drawn our community together and been the reason for many potluck dinners and picknics.

The wireless folks give the impression that they have the right to place an antenna anywhere they want. This is not true. While the Telecommunications Act of 1996 gave them some power over local governments to provide service to areas, it did not give them the right to place antennas wherever they want. It is our community and it should not be needlessly destroyed.

I have received 100s of emails from people across the country who have visited this site (www.cell-out.org). This page should help to provide some of the information people need to educate themselves and battle the unfair advantage of wireless companies that do this every day.