(one of my recent articles in West Newsmagazine)
After facing a slew of citizen comments at the Aug. 24 Ballwin Board of Aldermen meeting regarding the proposed installation of a communications tower near the intersection of Kehrs Mill and Clayton roads, the project petitioner was granted a continuance.
Sometimes a delay in proceedings helps garner more ammunition for the defending side of an issue. But this time it merely led to a little more discomfort for the citizens on hand at the Sept. 28 board meeting, and perhaps for a few aldermen.
By a 6-1 vote, the board chose to issue a special use exception to erect the communications tower at 15407 Clayton Road near Claymont Plaza.
“Again, to reiterate what we’re trying to propose is a 100-foot, monopole-style structure to replace the existing temporary cell site that is right next to the adjacent water tower. So, we’re trying to, in effect, take out one set of antennas and put in a permanent set of antennas. It will be able to handle other antennas; not just AT&T,” said Network Real Estate petitioner Matt Schlichter, representing AT&T Mobility, prior to the vote. “T-Mobile is also at that temporary site.”
Before the vote, 19 minutes were filled with passionate and sometimes emotional speeches by Wolf Café’s Bob Biribin; Ballwin residents Steve Weinstein, Amy Weinstein and Ken Dubinsky; and Catherine Cogorno, representing St. Louis for Safe Technology. The latter is a small group formed by people who have been seriously harmed by EMFs (Electromagnetic Fields) coming from 4G technology, such as cell towers, smart meters and WiFi.
Amy Weinstein pointed out that she and her cohorts had garnered 168 signatures against the bill, and not a single person they spoke with was in favor of it.
“I’m not going to go into details about health issues, but through research, I know there’s enough evidence out there to talk about the damage cell towers and cellphones do to the body. I know you can’t consider health when voting on this. It’s kind of a shame. There is a reason why all the government data is inconclusive regarding health. The standard of testing has not changed since 1996. Just so you know, 3G wasn’t launched until January 2002. There are thousands of independent studies from scientists around the world that you can Google on the internet, easily,” Weinstein said.
Cogorno claimed, “EMFs are damaging. It’s been proven they actually will cause cancer, dysfunction, immune system deterioration … all kinds of things. What we need are grounded connections. We need to stop this more and more. Faster internet is faster death.’
“What is it doing to our kids?” she asked “Think about the children. My personal opinion is this is criminal activity. We lost a battle in Webster just a few weeks ago. They put nine more cell antennas next to a school where they already have a bunch … next to a recreation center where thousands of families go every week there. Radiation is cumulative. We are being bombarded.”
Despite those comments, according to both federal and state law, municipalities are not allowed to turn down communications towers based on health or an item’s appearance. City Attorney Bob Jones also squelched the property ownership rights questioned in a reciprocity agreement brought to the board at the Aug. 24 meeting.
“I’ve had communications with the attorney representing the owner of Claymont Center,” Jones said. “Claymont Center is not the owner of the property. They are the beneficiary of a restrictive covenant. Missouri law does not consider Claymont Center to be owner, in my opinion. This is a private, contractual dispute between the owner of the shopping center and the property of where the tower would be located, and the city should not intervene in that dispute. The city should proceed to consider this on its merits.”
In response to an inquiry from alderman Mark Stallman (Ward 2), Jones added, “I see nothing in the application that would permit the city to decline this application.”
Alderman Kevin Roach (Ward 2), was still not sold on the merits or absolute legalities of the tower and cast the only negative vote.
“Relative to the special use exception, I see eight provisions in paragraph four,” Roach said. “I question whether or not the petitioner has achieved the threshold for two of them. The first, ‘would not adversely affect the character of the neighborhood,’ and the second, ‘that it could be developed and operated in a manner that is visually compatible.’”
(Ryan Moore photo)
Jones responded that the land use and the powers of the city in this particular special use exception would have to be harmonized with state law and federal law. While the city maintains its zoning authority regarding this application, every one of the findings that the board makes for a use exception has to be considered under the umbrella of state and federal law, which limits the city’s review.
“I found nothing in the applications or the proceedings to date to disqualify this applicant,” Jones said. “Each of you needs to make your own decision as a legislator, and I’m not going to tell you how you have to vote on a particular piece of legislation. All I can do is just give the best legal advice possible with regard to what’s before you and the parameters of what you can consider and what you can’t consider.”
The only other alderman who didn’t vote to approve the bill was Jim Leahy (Ward 3). He abstained because one of his brothers is a lead attorney for AT&T.
Even in voting to approve, several aldermen offered sympathetic words for its citizens.
“I share the concerns of the residents and business owners who have expressed their concerns about this proposed cell tower,” Stallmann said. “As a resident of Mayfair subdivision, the upper part of this tower will be visible from my yard. Sadly, however, the Missouri legislature has tied the hands of local, elected officials in our state. Rather than leaving issues like this to be decided at the local level, they have bowed to the interests of the telecommunications industry and took away most of our rights to regulate these structures. I hope all of you will join me and all your elected officials to convey our displeasure with this intrusive state law.
“That being said, our options in this matter are very limited, and in the expert opinion of our city attorney, the petitioner has met the requirements under state law to locate this tower at the requested location. We have been advised by our legal experts we have no grounds to deny the petitioner’s request, and if we do, we will lose the litigation that will follow that action. In good conscience, I believe that denying the petition and incurring thousands of dollars in legal fees for the lawsuit that we know going in we will lose, is not a responsible use of your tax dollars. Therefore, I feel I must do my duty in the best interests of the city to vote yes on this application.”
Alderman Michael Finley (Ward 1) noted that as an attorney who is licensed and practiced in the state of Missouri, he has reviewed all the laws. That included Mayor Tim Pogue’s reading of the applicable laws at the Aug. 24 meeting. He pointed to Missouri statute 79, which governs fourth class cities such as Ballwin.
“Section 79.260, which includes our own oath of office, states that we will support the Constitution of the United States, the Constitution of the state of Missouri, the provisions of all laws of this state affecting cities of the fourth class,” Finley said. “We’ve taken an oath of office that we have to uphold those laws. We have very compelling arguments against this petition, but in my opinion, there’s nothing we can do as a legislative body. We are a country of laws, a state of laws and a city of laws, and we have to go by the governmental hierarchy that we operate under. In this case, the federal government and the state government are over us, and that’s what we have to deal with.”
Alderman Frank Fleming (Ward 3) said, “These decisions, when you know a lot of residents are not necessarily in favor of this, but we’re limited in our ability to do anything about it, are very difficult. What it comes down to is we’re a legislative body to provide oversight for the city’s budget and their employees, and we set policy and exact ordinances.
“AT&T did its requirements and provided the letter saying they had an agreement to do this on that piece of property, and the city attorney had advised us that we don’t have the basis for turning it down. It’s unfortunate sometimes that we’re the small kid and the bigger kids can tell us what to do. That’s kind of what the case is now.”
