By Michele Bourdieu
KEWEENAW COUNTY -- The Keweenaw County Board of Commissioners Chair says he will allow public comment on the Brockway Mountain cell phone tower issue at the Board's monthly meeting at 6:30 p.m. TONIGHT, Wednesday, Apr. 18, at the Courthouse in Eagle River, despite the fact that the Board has already made a decision on the issue. The agenda for tonight's meeting includes an item titled "Open Meeting Compliance."
"If somebody wants to comment on (this issue), we'll save time at the end of the meeting (3 minutes per comment) when they can have their say," Ernest Mooney, Keweenaw County Board chair, told Keweenaw Now on Tuesday, Apr. 17. "But the Board is not going to re-hear this. The decision's been made, and we're standing by our decision."
Mooney noted the reason the area lacks cell phone service is that Brockway Mountain blocks the signal -- thus the location for a tower that will be higher than the mountain.
This image from the Friends of Brockway Mountain Facebook page includes this comment: "On a USGS topo map the red dot/cross is the proposed Brockway Tower location. This tower and its lights at night will be obvious from Copper Harbor, Keweenaw Mtn Lodge, Lake Medora, Brockway summit, US 41, and..... forever." Click on image for larger version. (Image courtesy Friends of Brockway Mountain)
A group of citizens concerned about the fact that public comments on this issue were not allowed at the Board's February meeting is suing Keweenaw County on the basis of the Michigan Open Meetings Act.
The Keweenaw County Board of Commissioners voted in December 2011 to approve building a cell phone tower (one of three towers approved for Keweenaw County) on Brockway Mountain -- an important flyway for migrating birds and a tourist attraction for the birders who like to watch and count them. Since that Board decision, a group of concerned citizens called the Friends of Brockway Mountain, along with other interested residents and visitors, have protested the location for the tower. Many even signed a petition against the location.
Mooney said he is aware of the birders' concerns, but he believes birds will get used to this type of tower and fly around it just as they would fly around a tree.
"They're free-standing towers. There are no guy wires on them," Mooney explained. "Birds can fly around them. Birds aren't idiots. They're pretty smart."
This osprey is typical of birds observed from Brockway Mountain, which is also a site for the Keweenaw Raptor Survey. (Photo © and courtesy Michael Shupe Photography. See more photos at www.mjshupephotography.com.)
Update: Joseph Youngman, who works on the Keweenaw Raptor Survey, sent Keweenaw Now an update saying, "I can't see that a tower placed near the east end of the Brockway ridge would disrupt the raptor survey. Nor would it harm many raptors. It almost certainly would harm many passerine (warblers, sparrows, thrushes, etc.) birds however. The death toll on passerines from towers is well documented."
Alex Protzel, a Copper Harbor resident and landowner, who is one of the plaintiffs in the lawsuit against the county, said he was "disappointed" that the Board did not allow public comment at the February meeting.*
"I think that many many people -- people who live here, people who visit here -- all seem to be appalled at the thought of a cell phone tower on Brockway Mountain Drive," Protzel said. "I'm happy to see that so many people are against it. I feel there's a better plan for accomplishing the same goal of providing cell phone service to this area."
Protzel and others opposed to the potential Brockway location of the tower say they are not against having cell phone service and recognize the need for it as far as safety, communications and emergency services are concerned.
"I would love to have it. Cell phone service would increase my quality of life," Protzel said. "Tourists come up here and have to scramble to find a pay phone. That's not good."
Copper Harbor has only one pay phone -- at Zik's Bar, he noted.
Residents hope to propose alternative tower locations
Protzel said he wanted to comment at the February Board meeting in order to suggest some other options for the tower location. One would be redevelopment of the currently existing communications tower at the Keweenaw Mountain Lodge (Both the Lodge and the tower are owned by Keweenaw County). Since this tower is only 120 ft. high, it would have to be modified.
Another solution is to follow up on the new bill (HB 5342) that would allow co-location of cell phone equipment on State of Michigan towers, Protzel noted.**
"My main goal is just to send the tower company back to the drawing board to look at other options, because their present location is detrimental to the character of the area," he added.
On Tuesday, Apr. 17, Protzel told Keweenaw Now he has some new information from a radio engineer who ran some recent tests that showed substantial coverage potential from locations other than the Brockway location. These include a possible site on the west side of East Bluff as well as the State of Michigan police tower.
Protzel described the site on the west side of East Bluff as "absolutely superior to the Brockway location."
The 450-ft high State of Michigan police tower is located on the eastern side of East Bluff, a few miles east of Copper Harbor, and is used by local law enforcement and fire departments for radio communications.
Keweenaw County Sheriff Ron Lahti said the Sheriff's Department would love to see cell phone coverage in the area, especially since people can't even call 911.
"I wouldn't have the expertise to comment on the best location, but I would like to see cell phone service in that area to assist us in responses to emergency situations," Sheriff Lahti said.
Copper Harbor business owner Peg Kauppi, who is also a plaintiff in the lawsuit, said the Friends of Brockway Mountain have been doing research about alternatives to the Brockway Mountain location.
"There is no doubt that we need service because of the hundreds of thousands of visitors to the area. But our group feels strongly that there is a good way to do this and it doesn't involve destroying the view of Brockway," Kauppi said. "We're just heartsick that people would even CONSIDER desecrating Brockway."
Kauppi noted the mountain will stand in the way of the west side of the town of Copper Harbor.
This photo, taken from a lookout point on Brockway Mountain Drive, looking east, offers a view of the town of Copper Harbor, the harbor at left and Lake Fanny Hooe at right. The cell tower location would be about 3/4 of a mile west of this lookout point. (File photo by Keweenaw Now)
"From what we understand, the Brockway tower would not give coverage to the west end of the Harbor," Kauppi said. "We are looking into the probability that the police tower (at East Bluff) would."
Kauppi said the Friends of Brockway group heard from people with technical expertise that the State Police tower has better coverage for Copper Harbor than a tower on Brockway would have. She also noted another possibility is that a private land owner on East Bluff has said he would be willing to put a tower there.
"Our group is also interested in this as an alternative. We went to the (February) meeting with excitement that we could offer something besides our general disapproval of their (the County Board's) decision. We wanted to ask them if they could notify the cell tower people that they had other ideas."
Kauppi described that February meeting as a "surreal experience" watching people denied the right to comment on this issue.
"The chair actually used his gavel and said he didn't want any more dead bird stories. Our group made it clear we weren't interested in dead bird stories either and that we had new information that would possibly benefit the county/residents. Mr. Mooney told us very loud and clear that he wouldn't hear anything on the cell tower issue. I definitely intended to speak that night," Kauppi said. "This (lawsuit) is not about money -- we want no financial gain. We want acknowledgment that our rights were trampled and that this will not continue in the future."
County officials approved tower locations in December 2011
Keweenaw County Commissioner and Vice-Chair Don Piche said the reason people weren't allowed to comment on the tower issue at the February meeting is that it wasn't an issue at that meeting, since it had been voted on in December.***
"If you want to talk about something that's not going on at the meeting you have to put yourself on the agenda," Piche explained.
Although Board Chair Mooney said he would allow public comments on this issue at tonight's meeting, he noted the Board is going to adopt a change to the meeting bylaws to include the requirement of putting oneself on the agenda to comment on anything not pending before the Board.
Keweenaw County Clerk Julie Carlson explained people would have to request being on the agenda by the Friday preceding any Wednesday meeting.
Piche noted also that the residents and business owners in Grant Township had expressed much support for the cell phone tower and were "even in support of having it on Brockway."
County Commissioner Frank Stubenrauch said, speaking for himself and not for the County Board, that he would be willing to listen to alternatives to the Brockway site.
"I'm willing to listen to alternatives they have if there are any logical and affordable ones," Stubenrauch told Keweenaw Now recently. "No decision is 'inscribed in stone.'"
Stubenrauch (who was absent from the December 2011 meeting because of illness) noted the Board's position was that the County had followed procedures religiously, holding public hearings on the issue and following the zoning ordinance protocol.
Lawsuit claims Open Meetings Act violation
The lawsuit against the County Board, however, is only "an action to compel compliance and enjoin further noncompliance with the Michigan Open Meetings Act (OMA), MCL 15.261 et seq," according to their Complaint, which also states, "The defendant's refusal to allow plaintiffs to address the Board was in direct violation of Section 3 of the Open Meetings Act, MCL 15.263(5)."
The Complaint cites Section 3 of the OMA, which states, "A person shall be permitted to address a meeting of a public body under rules established and recorded by the public body. The legislature or a house of the legislature may provide by rule that the right to address may be limited to prescribed times at hearings and committee meetings only." [MCL 15.263(5)]****
The Complaint also states the following: "The only rule provided by the Board for such meetings is that citizens stand, state their name and limit their comments to three minutes. There is no restriction as to content and any such restriction would clearly violate Section 3 of the OMA."
According to Protzel, the Open Meetings Act does not allow a public body to restrict content in the way the Keweenaw County Board restricted it at its February meeting.
"As long as the content is germaine to the county, I think it should be allowed," Protzel said.
Another plaintiff in the lawsuit, Frank Fiala, agreed an issue doesn't have to be on the agenda to speak to it. He noted Chairman Mooney, at the February meeting, had asked Protzel the nature of his comment before he began to speak.
"Under the Public Meetings Act, the chairman cannot predetermine who is going to speak or what they're going to speak on," Fiala said. "We attended the Board of Commissioners meeting in February with the intent of expressing our views on the proposed location of the cell phone tower on Brockway Mountain," Fiala said. "The indication was clear by the demeanor of the chairman that he was not going to allow any comment whatsoever on that issue, and so therefore we all got up and left."
Fiala, a former Keweenaw National Historical Park superintendent, said he joined Friends of Brockway Mountain because of his interest in birds and also in the history of the area.
"I'm interested in watching the birds fly. I have a background in raptor research," Fiala said.
He also noted his concern about the historical importance of Brockway Mountain and its connection to the Keweenaw Mountain Lodge, which is a historic resource since it was built by the WPA during the Depression years.
This photo, with a cell phone tower imposed, shows how the tower on Brockway would affect the view from U.S. 41 going into Copper Harbor from the Keweenaw Mountain Lodge. (Photo courtesy Chris Schmidt) Click here to see a slide show with more photos of the Brockway viewshed vs. the proposed cell phone tower.
In this case the Federal Communications Commission (FCC) has to approve the cell phone tower. Fiala said he doesn't think the consultants for the cell phone tower company, who are working with the county, are aware of the historical resources involved. Any time federal permits or funding are involved, the NEPA (National Environmental Policy Act) process, which includes the State Historical Preservation Office, is involved. In this case, Michigan State Historic Preservation Office (SHPO) Section 106 Consultation Guidelines for Cellular Communications Projects should be observed.
Section 106 states the following:
"While acknowledging that the APE (Area of Potential Effects) is dependent upon the circumstances of the project, the SHPO recommends the following APE boundaries for cellular communications projects in Michigan:
1. For construction of new towers or increasing the height of an existing tower (either through colocation or through an addition to the actual tower)
· 0.5 mile radius for structures up to 150 feet
· 1 mile radius for structures 151-250 feet
· 1.5 mile radius for structures 251-350 feet
· 2 mile radius for structures 351-450 feet
· Exceptionally tall towers (450 feet or more) will have an accordingly larger APE.
Topography, vegetation, non-historic development, and the character of any historic properties in the area can affect the size of the APE. Michigan has a fairly flat topography, making tall structures visible for a great distance. Structures placed on higher elevations will also have increased visibility. Such factors may justify increasing the APE regardless of tower height."*****
According to Protzel, "The first phase of the SHPO review in January has prompted the tower company to revise their initial plans of the 220 foot Brockway tower (with lights) to a 199 foot tower with no lights. Any tower under 200 feet is not required to have lighting per FCC regulations. That doesn't mean it won't have lights, but I believe they are scaling back the tower design, as the pressure mounts from various entities. I cannot confirm why the tower height was changed from 220 to 199, but I am inferring this from various conversations. While it is encouraging to see the wheels of analysis in motion beyond our local area, I hope that various historical and environmental reviews will find that the Brockway cell tower location is ultimately a poor location."
Protzel noted also this tower would be visible from the lake, lakeshore, Fort Wilkins, the Copper Harbor Lighthouse, and Brockway Mountain Drive. It would also loom over the newly acquired Hunter's Point (phase 2) land acquisition. (Click here for an aerial shot of that acquisition.)
Fiala added, "We're not against cell phone coverage in Copper Harbor, but it has to be done in a way that doesn't denigrate the natural environment."
* The minutes for the Board of Commissioners' Feb. 15, 2012, meeting state the following: "Time was allowed for public comment but the Board did not accept comment on the proposed cell phone tower as the decision was made at all local levels of government already and the issue was not up for discussion at this meeting nor was it on the agenda." Click here for those minutes.
** See House Bill 5342.
*** See the minutes of the Dec. 20, 2011, Keweenaw County Planning Commission public hearing and meeting for details on the towers (Brockway is one of three locations for cell phone towers). The minutes seem to indicate more supporters than opponents of the Brockway tower location. Both Ed Kisiel, Eagle Harbor Township Supervisor, and Evan McDonald, Keweenaw Land Trust executive director, spoke in opposition to the Brockway tower location. Three special use permits were approved for the towers, including the one at the Brockway location.
The Dec. 21 Keweenaw County Board of Commissioners meeting minutes record the Board's vote on the special use permits for the towers: "Motion by Mooney supported by Piche to follow the recommendation of the Planning Commission to approve the three Special Use Permits applied for by SBA Towers III, LLC for towers at the following locations: 14107 Brockway Mountain Drive, 12396 US 41 near Lake Medora and at 9779 US 41 near Delaware. Board polled. Ayes: Mooney, Piche, Rajala, Eckloff. Nayes: None. Motion carried." (Commissioner Frank Stubenrauch was absent from this meeting because of illness.)
At the Dec. 22, 2011, meeting of the Keweenaw County Zoning Board of Appeals, a public hearing was held to consider a request by SBA Towers III LLC and Verizon Wireless for a fall zone variance for the Brockway tower. Both Eagle Harbor Township Supervisor Ed Kisiel and Keweenaw Land Trust Executive Director Evan McDonald again expressed opposition. After a 3 - 2 vote approval of the variance by the ZBA, Kisiel asked to go on record as saying, "You are in violation of the ordinance article 19.2 a and b and 19.6 rules for granting a variance." (The Keweenaw County Zoning Ordinance is available on the Eagle Harbor Township Web site under Document Archive.)
**** Click here for text of the Michigan Open Meetings Act.
***** Click here for the Section 106 Guidelines.