July 17, 2019

Mysterious Rise of the Cell Tower Next Door

What rights do homeowners have when a cell tower company builds without warning? The Hanlins are learning the hard way.
By Patrick Sullivan | May 4, 2019

Gregory Hanlin vividly recalls the Saturday when he and his wife, Kimberly, pulled their pickup into their driveway and laid their eyes on a cell phone tower under construction next door.
The sudden appearance of the latticed tower on Dec. 1 spoiled a day of Christmas tree shopping. How could such an imposing structure get permitted without so much as a notice being sent to the people who live nearby?

“I went next door, and I asked the construction crew, ‘What’s going on here?’ and they said, ‘We’re building a communications tower for AT&T,” Hanlin recalled. “And I said, ‘How is that even possible? I was never even made aware of this thing.’”

Since that day, the dispute over the cell phone tower has consumed much of Hanlin’s life as he’s researched Clearwater Township ordinances and requested public records to determine how his township and Kalkaska County could give such a project the go-ahead.

What he’s learned, he said, is that there is a new, disruptive cell phone tower company at work with plans to blanket the country with cell towers. Hanlin said he believes local officials must prepare themselves and homeowners should learn what is and what’s not allowed in their jurisdiction.

“It’s on its way, and there’s no going back. It’s time to tighten up. It’s time to address this,” Hanlin said. “Ultimately, they are building what they want, where they want, and asking for permission later.”
 
“THE DISPUTE HAS BEGUN”
One of the first things Hanlin did after finding the tower was to call the new owner of the five-acre parcel adjacent his five-acre property where the tower was rising from the ground. James Bargy had purchased the land about a year and a half earlier on a land contract. Hanlin had seen Bargy from a distance, close enough to wave, but he hadn’t spoken to him before.

The previous summer, Hanlin said, it had appeared as though Bargy was running a commercial campground on the property, a use that would not be allowed under the zoning code, but it didn’t bother him and Kimberly too much, so the couple let it go.

(Hanlin got Bargy’s number from a billboard Bargy had installed on his property advertising a painting company; the billboard, Hanlin said, also violated township zoning because of its size, but he said he had let that go, too.)

The cell phone tower, however, was too much.

 “So, I called the number on the sign, and I asked my neighbor, ‘What’s happened here?’ And he says, ‘Well, we’re putting a tower up.’ And I said, ‘Well, I would have appreciated it if you would have come over to the parcels that were immediately affected and maybe asked us what our opinion is of this project,’” Hanlin said. “And he said, ‘Well I don’t have to do that. You must not know your zoning code. And it’s already done.’”

The thing is, Hanlin had lived in his home since 2003, and he works as a real estate broker and an appraiser. He does know the zoning code, and he knows that it explicitly addresses cell phone towers. They require special land-use permits, which involve an application that triggers notices to neighbors and then public hearings.

“I said, ‘I am going to make sure you went through the necessary permitting process for this tower,’ and he absolutely tells me, ‘Bring it on,’” Hanlin said. “Okay, well, I guess the dispute has begun.”

Bergy did not respond to messages seeking comment.
 
“SOMETHING SOUNDS FISHY”
It took less than a day for workers to erect the 170-foot cell phone tower alongside M-72 and Townline Road, in between Williamsburg and Kalkaska. The next Monday morning, Hanlin called Adam Parzych, the township zoning administrator, in an attempt to find out how such a thing could have happened.

“I asked Adam what was the story with this communication tower on M-72 adjoining my parcel, and he told me, ‘I know nothing about it,’” Hanlin said.

That was odd, Hanlin recalls thinking at the time. If the zoning administrator hadn’t heard of it, how could it have gotten a special land-use permit? How could it have received a county building permit?

Parzych promised to look into it and get back to him. On Thursday, as the Hanlins walked their bullmastiff, Duffy, along Townline Road, he noticed that a “job box” had been installed at the entrance to Bargy’s property.

Inside he found architectural drawings and site plans for the tower. Everything in the site plan’s map looked to be where it should — the tower, Hanlin’s pole barn, M-72. Everything looked normal until he read the description of the project, which listed the jurisdiction as Whitewater Township, the next township to the west, and one that is in Grand Traverse County. According to the paperwork, the tower had been approved by a zoning administrator from a different township.

Hanlin looked up the zoning administrator for Whitewater who ostensibly approved the project but learned he had recently passed away. So Hanlin contacted the township’s interim zoning administrator.

“He’s just scratching his head and saying, ‘This doesn’t happen, something sounds fishy, and as a matter of fact, if Whitewater Township’s name is on these plans and something is not accurate, we’re liable here, so I have to follow through with this,’” Hanlin said.

Momentarily, Hanlin thought he was getting to the bottom of things. He assumed the tower company had messed up and didn’t get the right permits, and the tower would have to come down.

In the meantime, Hanlin called Parzych, who still hadn’t gotten back to him after their conversation three days earlier. Hanlin told Parzych he had some big news and started to explain.

“And he basically cuts me off and says, ‘Greg, I’ve notified all necessary parties, and we are now scheduling a meeting for Friday, Dec. 28, and they’re going to come in here, and they’re going to get fully permitted, and this will all be behind us,’” Hanlin recalled. “And I’m saying, ‘Adam, what do you mean, this is all going to be behind us?’ And he said, ‘This is all going to be done. There’s nothing you can do about it.’ This is my zoning administrator. This is not how this works.”

Hanlin said he was infuriated by the time he hung up his phone.
 
CONFRONTING A CONSTRUCTION CREW
The construction crew was still at work on the tower that Thursday. They were pouring concrete for the chain-link fence that was to surround the structure.

Hanlin said after he got off the phone with Parzych, he walked over to tell them they had to stop working because they didn’t yet have a permit.

“The whole crew was like, ‘Who the heck is this guy?’” he said.

Hanlin spoke with the foreman, who he said took him seriously.

“He takes me over to his truck, and he shows me a county building permit. At that point, my head did spin on my shoulders,” Hanlin said. “I couldn’t figure out how they received a county building permit without a special-use permit.”

Hanlin visited the county offices to discover how the building permit could have been issued. A helpful clerk told him she was familiar with the project, and she helped him find the documents that would explain what happened.

After filing a Freedom of Information Request, Hanlin obtained copies of an email exchange between Parzych and Mike Bieniek, zoning director for LCC Telecom Services, a company that builds cell phone towers for Tillman Infrastructure. The exchange dated back to June 2018. Parzych, it appeared, did know about the tower, according to the emails.

Parzych did not respond to messages seeking comment.

In one email, Bieneik wrote that the tower had obtained Federal Aviation Administration and Michigan Department of Transportation authorization, and he asserted that the township does not regulate towers in its zoning.

“As we discussed, this area falls within Clearwater Township’s jurisdiction, which does not have regulations that would pertain to construction of a wireless telecommunications facility,” Bieniek wrote.

Bieniek referred questions from Northern Express to a representative of Tillman Infrastructure, who did not return a message seeking comment.

“So, Mike Bieniek got permission via an email to bypass the special land-use permit because unfortunately, our zoning administrator is incompetent,” Hanlin said. “And I finally have gotten to know that. He is not fit to be in this position.”
 
“WE MADE THEM LOOK LIKE FOOLS”
Hanlin set out to prepare for that Dec. 28 township planning commission meeting.

He wrote a memo to all of his neighbors, encouraging them to attend the meeting and express their concerns. He went door to door along the M-72 corridor above Lake Skegemog. In many cases he met neighbors whom he’d waved at from a distance but never met face to face.

By the evening of the meeting (which, as well as happening on a Friday between Christmas and New Year’s, took place during a snow storm), the neighbors showed up at the township hall in Rapid City as a unified bloc armed with information and questions about the project.

“I’m going to say, at that meeting, you had an ill-prepared Tillman Infrastructure and LCC Telecom,” he said. “To be honest with you, we made them look like fools.”

As the meeting progressed, it became apparent that Tillman’s representatives would not be able to explain all of the errors that led to the tower’s construction without a permit; Hanlin said theyfinally asked for an adjournment.

Before the tower could come before the planning commission a second time, the matter was again delayed by Tillman, apparently because the company had discovered that the tower didn’t meet township setback requirements. It’s too close to M-72, it’s too close to the Hanlins’ property line, and it’s too close to several houses, Hanlin said.

That meant Tillman had to go before the zoning board of appeals to ask for a variance.
At a ZBA meeting in March, lawyers for Tillman argued that the tower’s present location is the best, most optimal place to improve cell phone service, and that there are no other suitable locations.

“They were absolutely more prepared at that ZBA meeting,” Hanlin said. “Now they start talking about special conditions that exist on this parcel. This is the only place this can go on this parcel. This parcel was the best, and they exhausted all parcels in the radius.”

As the board went through the conditions the tower would have to meet in order to get the variance, there was, at one point, a 2–2 tie vote. Only four of the five ZBA members were present, so the Tillman representatives asked for another adjournment. The matter could come up again at a special ZBA meeting if Tillman pays the township to hold one, or the company can make the request again at the next ZBA meeting in July.

Mel Cooke, one of Hanlin’s neighbors, said the tower is out of character for the area he lives in; he added that it should be removed on principle, because Tillman constructed it without permission.

“I can see it from my front window, from my downstairs window, and it’s right in my line of sights as I drive out my driveway,” Cooke said. “I don’t believe that they should be allowed to go ahead with that tower when they didn’t do it properly in the first place.”
 
A NEW WAVE OF CELL TOWERS
There is something else about the location of the tower, Hanlin believes, that undermines Tillman’s argument that it is located in a uniquely optimal spot: It is located across the highway from an existing tower owned by DCS Tower Sub, a subsidiary of American Tower Corporation. That tower hosts an AT&T antenna.

American Tower is one of the “Big Three” cell phone tower companies in America that until recently owned virtually all of the towers across the country and leases them to cell phone companies to host antennas.

Tillman was founded in 2016 with the aim to be a disruptive force in the industry; its business model was to undercut the lease rates offered by the Big Three competitors. It became the first tower company to get AT&T and Verizon to agree to use the same towers, a key part of the company’s gambit to be able to charge lower rates.

The Clearwater Township tower next to Hanlin’s home would be a valuable addition for the company; it would have space for Tillman to host six antennas from six cell phone companies.
That’s why Hanlin and his neighbors were joined in their battle against the tower by Daniel Dalton, a Detroit land use attorney who represents American Tower.

He filed a 14-page brief with Clearwater Township arguing against granting a zoning variance to the Tillman tower. The brief goes point by point through the standards for granting a variance and argues that Tillman failed to meet them. Moreover, the tower would harm property values and is out of character for a recreational district.

Dalton wrote of Tillman’s variance request: “This application is simply an afterthought — a request for forgiveness after illegally building a tower.”

Hanlin said what’s happened in Clearwater Township perfectly fits Tillman’s modus operandi — to lease cheap land as close as possible to existing cell phone towers so that the company can lure AT&T and Verizon away from those other towers by offering them cheaper rates to co-locate.

“They’re canvassing the United States, they are looking for the rural areas, and they are going to where their competitors towers are at,” Hanlin said. “We now are ultimately in the crosshairs of a multi-billion-dollar play here.”

The stakes are high for Hanlin and his neighbors. He said that if the tower is allowed to stand, it could reduce neighboring property values by 30 percent.

Hanlin knows that if Bieniek and Tillman had applied for a special land-use permit and a variance before they started construction, there is a good chance they would have been granted permission to build a tower anyway.

But in that case, he said, maybe there would have been some compromises; maybe they would have agreed to build a somewhat shorter tower further back into the property.

“A hundred and seventy feet isn’t going to work, and I’m not going to be flexible on that,” Hanlin said. “But a hundred feet? Maybe.”

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