Ed Freitas didn’t know what hit him. In October 1997, he recalls, he saw the trucks and bulldozers pull onto the private road leading to his home in Nienie, just west of Honoka`a on the Big Island, and watched, aghast, as workers began clearing a wooded area on property owned by neighbors who had leased a portion of their lot to U.S. Cellular Corp.
“I begged them to stop and told them I was planning to file a complaint, seek an injunction,” Freitas said. “But that seemed to make them work all the faster – from early morning into the night.”
Within a few days, the 150-foot communications tower was up. Freitas had been planning to build a home for his daughter near the property line. With the tower now in place, he was forced to relocate the house site. Even so, the antenna, whose base is just 31 feet from the property line, overshadows the house. The green paint on the tower’s lower 100 feet, intended to provide visual mitigation, does little to camouflage the structure’s conspicuousness.
Common Problems
Freitas’ experience is not uncommon in Hawai`i. As cell phone use increases, so, too, does the construction of the antennas that make them work. And across the state, the sprouting of cell phone towers has sparked the opposition of residents, who claim they are unsightly, have not gone through proper permitting processes, have reduced property values, or may even pose a health threat.
In urban areas, placement of towers has been more scrutinized. Last month, the City and County of Honolulu rejected plans of Sprint Hawai`i to put a 70-foot-high antenna on a recreation center in Mililani, following the protest of the Mililani Neighborhood Board. Usually, urban areas have stricter limits on height and visual impacts than exist in rural and agriculture areas.
For most of the 1990s, Hawai`i County did not require towers in the state Agricultural District to obtain a special use permit, despite advice from the state Land Use Commission that this was required. Only after the state Supreme Court ruled in 1999 that such towers had to receive special permits, if built in the Agriculture District, did the county Planning Department stop issuing automatic approvals. Now the county is faced with requiring all those towers for which no special permit was issued to come in for after-the-fact permits. As one planner told Environment Hawai`i, the county has no idea how many towers are affected, or where they are located. “The county didn’t keep track of antenna permits,” she said.
Now that Hawai`i County is requiring special permits to be obtained, adjoining property owners have the opportunity to receive notice and express their opinions before a permit is issued. In mid-May, U.S. Cellular and VoiceStream Wireless made public their plans to build two towers – a 145-foot tower near Ke`eke`e and a 60-foot tower near the town of Kailua, respectively. Residents living near these sites will have what Ed Freitas never got: formal, advance notice of the planned installations.
Textbook Cases
What follows is a summary of three towers on the Big Island and one on Maui where, despite the protests of neighbors and, in several cases, successful challenges in the courts, the towers still stand and operate.
Napo`opo`o: The grand-daddy of them all is a 130-foot-high tower in South Kona, near Napo`opo`o. The tower was built on land in the state agricultural district, in which, under state law, uses are restricted to mainly agricultural purposes unless the county issues a special permit. In addition, the site fell within the county’s coastal zone, or Special Management Area. Structures in this area require an SMA permit. If the value of the structure is under $125,000, a minor SMA permit can be issued. For structures of greater value, a major permit is required, with greater public notification requirements and approval of the county Planning Commission.
The Napo`opo`o tower, built by U.S. Cellular Corp., was erected in 1994 without the requisite agricultural district special permit, while the SMA permit that the county Planning Department issued was a “minor” one. Nearby residents appealed to the Board of Appeals as soon as they found out about it. In testimony before the Board of Appeals, the representative of U.S. Cellular stated that the company sought to avoid any public hearing on the permit request, since that could take “months to infinity” to obtain.
After losing at the Board of Appeals, the residents, represented by attorney Mike Matsukawa, took the case to the Third Circuit Court, which agreed with them that the minor SMA permit was not appropriate and also that a Special Permit for use of Agriculture land was required.
U.S. Cellular and Hawai`i County appealed to the state Supreme Court and lost in May 1999. Since then, U.S. Cellular has not yet filed for any after-the-fact permits, and six years after the tower was built, it remains in use. According to a county planner, U.S. Cellular “is working on a permit application.” The county has not yet taken any enforcement action.
Maulua Gulch: Hawai`i County lost a second court battle in the case of a 195-foot-high tower that U.S. Cellular built in Maulua Gulch, north of Hilo along the Hawai`i Belt Road, in late December 1998. Once more, the county Planning Department had allowed the structure to be erected in the ag district without a special permit. In addition, the county failed to take into account the fact that both the county General Plan and the Northeast Hawai`i Community Development Plan designate Maulua Gulch as an area of natural beauty.
Christopher Yuen and his wife, Noelie Rodriguez, own property nearby and challenged the county’s approval of the structure, arguing that the Planning Department, in violation of the county zoning ordinance, had not taken into account the antenna’s scenic impact. The Board of Appeals upheld the Planning Department’s decision. Yuen, who is an attorney, then sued in state Circuit Court, on behalf of himself, his wife, and George Robertson, who owns property adjoining the lot where the cell tower was built.
In court, the county’s planning director, Virginia Goldstein, said that she and her staff had been advised by the county’s corporation counsel that, on the basis of scenic considerations alone, they could not deny permission to anyone requesting to build a telecommunications tower anywhere within the county’s jurisdiction. While they could put conditions on such structures, she said, they could not actually withhold issuance of a permit.
Deputy corporation counsel Patricia O’Toole, who represented the county in the lawsuit, told the court that it was unreasonable to expect county planners to make the judgment calls as to what was too ugly to build or too beautiful to deface, according to the account of Hawai`i Tribune-Herald reporter Chris Loos. “Some residents find it [the tower] acceptable,” O’Toole told Judge Greg Nakamura. “We do not see any point in remanding to the Planning Department. The tower is up.”
Judge Nakamura rejected the county’s arguments. The county had improperly approved the tower without considering the beauty of Maulua Gulch, he determined. By refusing to exercise any judgment as to the impact of a structure on natural beauty, he wrote, the Planning Department had made moot a portion of the county code. “An administrative agency cannot nullify legislation,” he wrote, remanding the matter to the Planning Department, where it remains at this time. In mid-May, U.S. Cellular applied for an after-the-fact special permit. No action has been taken on it to date.
Nienie: The case of U.S. Cellular’s 150-foot-high tower near Ed Freitas’ property in Nienie, Hamakua, may be the most egregious yet. It was built with the county’s blessing in 1997 – again, with no special permit for use of land in the agriculture district and with no notification of nearby property owners or residents. Owners of the land on which the antenna was built receive $550 a month lease rent.
To get to the building site, contractors had to cross over a private road owned by Freitas and his daughter, Natalie Espenesa, altering the road’s grade, bulldozing Freitas’ land, and cutting his trees – all without Freitas’ permission. The tower itself is just 31 feet from the Freitas property.
After the Supreme Court ruling in the Napo`opo`o tower case, U.S. Cellular applied for an after-the-fact special permit, which the county Planning Commission awarded in December 1999. Planning director Goldstein, stating that the tower “does have a substantial visual impact on the immediate, adjacent property,” recommended that the commission grant a permit, but only if the tower was relocated and painted to better blend with the natural surroundings. The commission rejected Goldstein’s recommendation for relocation when it granted the permit, but did require the company to undertake some form of landscape mitigation. The commission also put a limit of eight years on operation of the tower.
Since then, Freitas has appealed the county’s issuance of the special permit in Third Circuit Court. Among other things, the suit argues that there was no demonstration of how any landscaping could mitigate the tower’s impacts. At press time, the parties were in mediation.
The three antennas that have been contested are but a fraction of the total number of towers that have been built on agricultural land in Hawai`i. The county Planning Department says it has no idea of the precise number of towers that need to be permitted after-the-fact.
Ha`iku, Maui: The construction last February by Sprint of an antenna in a residential area of Ha`iku, Maui, known as Rice Camp, has sparked an outcry heard all the way to federal court. Unlike the controversial towers in Hawai`i County, this one is built on land that falls in the state urban district and county “interim” zoning. Originally intended to be 195 feet tall, the tower stands now at 140 feet, with construction of the last segments put on hold after community protesters in April prevented a helicopter from delivering them to the site. Still, the tower is in operation, with Sprint’s workers having managed to install equipment on the shortened tower.
The Maui County Department of Public Works issued Sprint a building permit for the tower in the belief that no hearing or public notice was required. The county also issued a height variance since the tower would exceed the 30-foot height limit set informally by the county administration in 1984.
About twenty residents – some whose houses are just a few dozen feet from the tower – appealed to the county Board of Variances and Appeals. A contested case hearing is pending. Attorney Isaac Hall, who himself lives in Ha`iku, is representing the residents.
At the same time, in an effort to obtain a restraining order to prevent work on the tower, Hall filed suit in Second Circuit Court. The Board of Variances and Appeals, Hall notes, is unable to provide injunctive relief. But no sooner was the lawsuit brought than Dennis Lombardi, attorney for Sprint, requested and received the court’s permission to remove the case to federal court. Because Hall’s complaint included an allegation of harmful emissions (in the form of non-ionizing radiation) from the tower, and regulation of such emissions are the jurisdiction of the Federal Communications Commission, the case had to be heard in federal court, Lombardi argued. “The day before the hearing on the temporary restraining order was to be heard,” Hall said, “Sprint removed the whole case to the federal court, which pretty much prevented us from getting any injunctive relief. We think they removed it to federal court in bad faith.”
“We filed a motion to remand” the case back to state court, Hall said, “since we think there’s no basis for removal” to federal court. “But they’ve already achieved what they wanted to achieve, which was to eliminate any chance we’d get an injunction before it was built.”
Telecommunications Act Requirements
In 1996, Congress amended the Telecommuncations Act in a way that local authorities and telecommunication companies interpret in vastly different ways. As Hall explains it, Congress “included provisions preserving the power of local zoning authorities to deny the building of towers,” but forbidding them to use as a reason for denial any concern over radio-frequency emissions, so long as those emissions are within limits set by federal guidelines.
Several recent decisions in federal court have upheld the authority of counties and towns to withhold granting of permits to telecommunications companies seeking to build antennas to serve wireless telephones. An attempt by a citizen group to challenge the Federal Communication Commission’s guidelines on radio-frequency emissions from wireless communication towers was turned down by the U.S. Court of Appeals for the 2nd Circuit. The group, the Ad Hoc Association of Parties Concerned about the Federal Communications Commission Health and Safety Rules – or AHA for short – has said it will appeal the decision to the U.S. Supreme Court.
— Patricia Tummons
Volume 10, Number 12 June 2000
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