The Duluth City Council rebuffed Verizon Wireless’ request Monday to revisit a cell tower ordinance the body unanimously approved on June 14.
Jaymes Littlejohn, an attorney for the cellular giant,Â suggested the new city ordinance could invite lawsuits unless it is changed. He said the ordinance attempts to preempt federal law.
However, Deputy City Attorney Alison Lutterman advised councilors that she felt the ordinance stands on sound legal ground.
Littlejohn warned the council that Duluth could risk falling behind other communities if it makes doing business in the city too arduous and expensive. In particular, he faulted the city for requiring the same type of permit applicationÂ for a minor antenna upgrade on a n existing tower as it does for an entirely new structure. Littlejohn also suggested Duluth’s ordinance would subject wireless companies to potentially exorbitant consultant fees. He said that in some other communities where cell tower applicants were required to pay for consultant services, theÂ tab to permit a single project had topped $50 grand.
The ordinance requires cell tower applicants to place funds in an escrow account which can be drawn down to pay for consulting fees. After completion, any funds remaining in that account will be returned.
The threat of a permit costing tens of thousand of dollar is quite remote, according to Bob Naumann, a wireless consultant retained by Duluth. Naumann said he has been in the business for years and has yet to exhaust an $8,500 escrow account on any single project.
Councilor Jim Stauber unsuccessfully urged his colleagues on the council to pass a resolution of intent to re-examine the ordinance in light of industry objections. Verizon’s opposition were seconded in an Aug. 13Â letter to the city from PCIA-the Wireless Infrastructure Association.
“I think it’s imperative to hear from all sides of an issue. But for whatever reason, the city did not invite all the players to the table,” Stauber said. “It was a one-sided decision-making process.”
Dave Montgomery, Duluth’s chief administrative officer,Â pointed out that the ordinance was subject to public hearings in front of first the Planning Commission and then the City Council,
“Our administration believes providers had ample opportunity to bring their concerns forward,” he said.
The wireless interests had more than a month to weigh in on the proposed ordinance, saidÂ Councilor Jay Fosle, who saw no need to backtrack.
Councilor Todd Fedora came to Stauber’s support, saying: “This resolution of intent doesn’t bind us in any way. I’d rather be open minded and listen to their concerns.”
Councilor Kerry Gauthier questioned Verizon’sÂ motives in retaining a lawyer to critique Duluth’s new ordinance after the fact.
“I think the industry is trying to save a buck by threatening lawsuits,” he said.
Council President Jeff Anderson favored at least considering possible changes to the ordinance and noted that he found himself voting with a couple ofÂ uncharacteristic allies on the issue.
“This is something you don’t hear every day, but I completely agree with Councilors Stauber and Fedora,” he said.
Ultimately, however, Councilors Anderson, Stauber, Fedora and Tony Cuneo were outvoted by Gauthier, Jay Fosle, Sharla Gardner and Dan Hartman.
If a fight is brewing, I guess we’ll let the lawyers duke it out.