Cell tower permit denied

by Michael Howell

The latest permit application by Network Connex to install a new cell tower on the mountainside west of Hamilton has been denied. Vertical Bridge BLT, the largest private owner and operator of communications infrastructure in the United States, is handling the application. The company specializes in providing “build-to-suit” solutions where they construct towers specifically for wireless carriers and then lease space on the tower back to the carrier. They also offer colocation services, allowing multiple carriers and other telecom companies to lease space on existing towers. In this case they are seeking to install a tower for T-Mobile on property leased from Matthew and Lindsay Durling at 302 Black Bear Lane.

The application submitted in September 2024 underwent four rounds of review by the Ravalli County Planning Board in which it was determined that the proposal did not meet the requirements of the county’s Wireless Communication Facility Ordinance that “antenna towers over 60 feet in height shall be located at least a mile from any other communication facility over 60 feet in height.” It was determined that there is an existing tower located within that range further up the mountain at the Grubstake. However, the ordinance does allow for an exception to the spacing requirement but “only if co-location is scientifically proven to be unfeasible and where it can be demonstrated that a unique hardship exists to prevent compliance.” The Planning Department recommended approval of the permit “subject to the spacing approval.”

The County Commissioners considered the proposal at a meeting in April which was continued to a June meeting and finally continued to the latest meeting on July 30. The county received 84 written comments from the public and significant amounts of oral comment from the public during the three meetings, almost all of it in opposition to the proposed tower.

Commissioner Jeff Burrows noted at the meeting that it is not being reviewed under the Subdivision and Platting Act, and without any county zoning or local zoning in the area it is being reviewed solely under the county’s Wireless Communication Facility Ordinance and federal regulations primarily in the Telecom Act which precludes consideration of environmental and health effects regarding radio frequency emissions. The applicant agreed to four extensions to the federal time-line requirements for a decision, the last of which was set to expire on the day of the latest meeting.

During that process the applicant made some changes to the design of the tower such as using non-reflective paint and adding a mono-pine camouflage designed to blend in with the surrounding forest. They provided a response to the “opposition memorandum” submitted by citizens at the June meeting as well as a third-party review report completed by a licensed engineer addressing the possibility of co-locating on nearby towers, the need for the proposed location and a radio frequency safety report.

Vertical Bridge submitted an alternative site analysis including scientific reports from two different consulting firms to justify that co-location on the Grubstake tower was not feasible due to its higher elevation on the mountain. They also sent letters to other landowners in the area looking for an alternative site and provided a Coverage Objective and Engineering Report showing current and desired coverage which they claim demonstrates that location at the Grubstake tower is unfeasible and presents undue hardship.

According to Planning Department Director Rob Livesay, the planning board got a lot of public comment that “by all means are important things to consider such as high fire hazard, roads, access and maintenance, emergency services, wildlife, water, property values, but as far as the Planning Board’s review, those are not in our ordinance, so  it is outside our scope to consider those.” 

“Again, I’m not saying those are not important things to consider and if there is an effort by people who want to revise the ordinance in the future to encompass those things, I’m happy to work with people on that,” said Livesay.

He said the 2023 application which was denied “lacked any evidence to meet the spacing requirement, period. They did not put forth much evidence at all showing that they tried to contact other landowners.” He said faced with a decision to deny it and after consultation with the county attorney, the applicant was given an option “and that’s when the subdivision variance procedure was used.”

He said the current application was “a lot more robust and contained a lot more analysis and information” so that rather than deny the application, it was decided to forward the application to the commissioners and let them take a hard look at the spacing exception and make their own determination.

Randy Stewart, a retired family doctor from Hamilton, submitted a report done by a group of concerned citizens that has been seeking drive-by and drop-call information that might justify the claim that there is a need for the new cell tower. They used iPhones to do in-vehicle tests and gathered information from 765 data points at 51 locations in a 1- to 2-mile radius around the proposed cell tower site. They found that T-Mobile dominates the other carriers, AT&T and Verizon, in terms of data speed in the area and 100% of the RSRP (voice call) readings were rated “Fair” to “Excellent” with no “Poor” and zero “no call” signals. They found no “dead spots” in the vicinity of the proposed tower but did find one in the heart of downtown Hamilton. The group also claimed that the information submitted in terms of data in the area contained no actual data or coverage statistics.

“By contrast, the abundant data presented in this study – from testing conducted by Hamilton residents, travelling on Hamilton roads to collect it – clearly demonstrate the exact opposite to be true,” it states in the report.

They also presented a coverage map that T-Mobile uses when trying to sell service to potential customers that agrees with the citizen study findings.

The study ends with the note, “If you are willing to send a qualified expert to conduct on-site testing rather than relying on remote simulations and providing no data, we welcome the opportunity to have our findings challenged. Until then, we don’t believe you.”

According to a report submitted by the applicant, the proposed Owings Creek site on Black Bear Lane has an elevation that is 350-400 feet above that of downtown Hamilton, while the Grubstake Road site is some 1600 feet above town, meaning coverage from this site would significantly overlap the coverage of the two existing base stations in Hamilton, as well as sites farther north and south along US 93. They claim that they explored the option of antenna downtilt from the Grubstake site and found the option unhelpful.

The map included in the report shows data collected from T-Mobile customers’ phones as they traveled in the Hamilton area. This data shows the customers’ real world experience, making it an accurate measure of T-Mobile’s coverage. Most data points west of the river can be seen to indicate poor coverage.

Glenda Wiles, a resident in the area and former county commission administrator, also raised the issue of potential violations of the public’s constitutional right to know and participate in government decisions by their failure to provide answers to her Freedom of Information Act requests about communications between county personnel and the applicant. She stated that she was persuaded by Commissioner Greg Chilcott to withdraw her first FOIA request due to concerns about the county being sued and that her subsequent second submittal of a FOIA for the same information has gone unanswered.

Commissioner Burrows said that the issue for the commissioners comes down to two considerations, the issue of co-location at an existing tower and the issue of undue hardship. He said the company information and the third-party review provided led him to believe there may be justification for the issue of not being able to co-locate to that existing tower, but he also found the data driven study by the citizens to be compelling. He said that issue aside, he was not able to wrap his mind around the issue of hardship. He said there is property for sale in that area and outside the one-mile radius that could resolve the issue of co-location. He said he doesn’t understand how not getting the proposed location was a unique hardship.

Commission Chair Dan Huls said that he was in agreement with Burrows over the hardship issue.

Commissioner Chilcott said that he would like to hear a response from the applicant.

Meridee Pabst, representative for Vertical Bridge, objected to the last minute submission of technical data that they had no time to review and in response to claims about the company not presenting any data said that “there was no legal requirement that any hard data be provided,” and that the coverage maps submitted were customarily used and done by qualified engineers, unlike the citizen report. 

Dave Gerling, T-Mobile’s radio frequency engineer, stated that the citizen study only tested for downlink capacity from outdoors while the company was interested in uplink capacity as well and had to consider both. He said they were also interested in “in-building” availability which was not tested in the citizen report. He said the actual customer data could not be shared due to privacy laws.

Commissioner Burrows asked if the company used a different map to sell stuff to folks than the map to build cell towers.

“Yes, and every carrier does,” said Gerling.

“That’s wrong,” said Burrows. “I would do that if I was selling cell phone plans maybe, but when I look at your T-Mobile map it shows 5G Ultra capacity on the entire West Side.”

“I can’t  comment on that,” said Gerling. “I’m just here to comment on what evidence I provided.”

Pabst also stated that the company was concerned about cell coverage in buildings, not just in vehicles, and reiterated the claims in the engineer reviews that the cell tower located at the Grubstake was too high in elevation on the mountain side to provide the service they were looking to provide. She also noted that denying personal wireless service was a violation of federal law. 

She said that the citizen memorandum in opposition is riddled with errors, misleading and improper claims, and should be disregarded altogether. 

“Then there is also the question of prohibiting wireless service,” said Pabst. “Even if local denial of a project is supported by local code and supported by substantial evidence, it could still not withstand review under federal law. The Telecom Act bars denials if there is evidence of a significant gap and the applicant has shown that the proposal is the least intrusive means.”

Burrows asked if anything prevented T-Mobile from purchasing property.

“There is no prohibition on that but I have never seen that as a standard,” Pabst responded. “The standard is, ‘is it leasable?’”

“But that standard is a business model for T-Mobile and not any sort of regulation,” said Burrows.

“Well that’s the standard that’s applied when a federal court looks at the decision,” Pabst responded.

“Just because it doesn’t meet your business model, I don’t see how you can call that a hardship,” said Burrows. “What it comes down to is, do we believe that we are prohibiting personal wireless services by denying this cell tower location.”

Commissioner Chilcott referenced the map submitted by T-Mobile showing a gap in service.

Burrows said he also looked at the map on the company’s website showing good coverage.

“One of the maps is wrong, so there is conflicting data here,” said Burrows. “So I guess I’m proposing a finding that personal wireless service is not prohibited by denial of the application.”

In the end the commissioners decided that it may be unfeasible to co-locate the system on existing towers, however, there is no unique hardship because it has not been proven that there are no other alternatives. 

The vote to deny the application was unanimous.