Assembly hears WiMAX tower appeal

Citizen appellants spent thousands of hours building case

Posted: Friday, May 15, 2009

Acting as a quasi-judicial body, the Juneau Assembly heard a formal citizens' appeal Thursday attempting to block a permit to build a 150-foot communications tower on Mendenhall Loop Road.

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Michael Penn / Juneau Empire
Michael Penn / Juneau Empire

The Assembly's decision is pending, but it offered hints as to how, if at all, the body will act in its normal policy-making capacity to rein in the uncoordinated, case-by-case permitting of such towers. AT&T Alascom sought permission from the Juneau Planning Commission at a Jan. 13 meeting to build that tower and a second 180-foot tower on Montana Creek Road. The first permit was granted, and the decision on the second one was put on hold. Both requests were for conditional use permits, necessary because the sites are zoned for residential development.

In February, a handful of residents represented on Thursday by husband and wife George and Ruth Danner, and Tim Strand, filed an appeal with the Assembly and spent thousands of hours preparing a case against the tower.

Before filing, the trio and a few other residents near the proposed sites had expressed concerns about the effects the towers would have on community aesthetics, property values and the uncoordinated process that most tower permitting goes through under Juneau's planning codes.

Some of the nearby residents indirectly involved in the appeal had expressed concerns about the public heath effects of electromagnetic emissions zipping through the air, too, though federal communications codes put the emanations well within the threshold of safe exposure levels.

Ultimately, Strand reiterated Thursday, they want the city to create a comprehensive policy for future tower placement. Assistant City Attorney Jane Sebens, defending the planning commission in the appeal, laid out the Assembly's role in her opening statements.

"In thinking about what to hear, what to decide, wear the right hat," Sebens said, contrasting the Assembly's usual policy-making role against their role as adjudicators in this appeal.

"You're in an appellate role. ... What I heard tonight, very articulately, was a move for change of laws" rather than a violation of law, Sebens said. "Apply the law."

Most of the residents' concerns weren't directly up for debate because the merits of the project itself aren't supposed to be part of the Assembly's decision making in the appeal. Instead, the cases presented focused on the lawyerly and subjective business of whether or not the commission properly established that the tower would be "harmonious" with its surroundings under city planning rules. Also debated was whether or not the evidence used to make the decision was legally "substantial."

Under city codes, the Assembly can overturn a Planning Commission decision only if it determines the commission erred in the decision-making process. Specifically, the Assembly must determine if the commission rendered its decision with insubstantial evidence, if the written findings used to make the decision were inadequate, or if there was a failure of procedural due process.

Personal concerns aside, the appeal did challenge the commission's decision on all three points.

According to a city planner's reports that the commission used in its decision, the two towers would expand AT&T's WiMAX coverage area across virtually the entire valley, have no measurable effects on property values and have a limited visual impact. WiMAX is a wireless means of delivering high-speed Internet service that competes with DSL and cable providers.

Regardless of the outcome, the act itself was a bit of a coup for the trio of appellants. They conducted their research, wrote legal briefs and presented their case on their own. None of them are a lawyer by trade - Strand is a semi-retired optometrist, George Danner a retired Alaska Marine Highway engineer and Ruth Danner is an accountant with the Alaska Permanent Fund - but they held their own against Sebens and a second lawyer representing AT&T.

Ruth Danner said they stepped into the role accidentally, initially only as concerned citizens at a public meeting. George Danner estimated they spent more than 1,000 hours building the case.

"Again, the time invested in research - I'd never do it again," Danner told the Assembly.

Mayor Bruce Botelho said he doesn't expect the Assembly to have a written, preliminary decision on the matter ready until June or later. That decision will be circulated to the parties for review and may be modified by the Assembly before its final adoption. The decision may be challenged further through the court system.

Six of the Assembly's nine members attended the appeal. The absence of the other three members - Sara Chambers, Johan Dybdahl and David Stone - bars them from participating in the subsequent deliberations on the appeal, per city codes.

• Contact reporter Jeremy Hsieh at 523-2258 or e-mail jeremy.hsieh@juneauempire.com.



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