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Menahga City Council reapproves cell tower CUP

The Menahga City Council reapproved a conditional use permit (CUP) for Uniti Towers LLC to build a 300-foot telecommunications tower at 1043 Aspen Ave. S., which is zoned an agricultural-residential district.

Uniti Towers voluntarily submitted a revised CUP application to reflect that the proposed tower is approximately 200 feet east of the location in the original CUP. The city planning commission recommended approval in both instances.

The council's Jan. 3 special meeting was the fifth hearing about the CUP due to opposition by American Tower Corporation.

The original CUP

In September, the council awarded the original CUP to Uniti Towers.

In October, American Tower Corporation asked the council to revoke the CUP awarded to its competitor. Attorney Nick Delaney, representing American Tower Corporation, argued that a cell phone tower isn't "public service use" or "public utility," and therefore doesn't fit within the provisions of the city code. He said Uniti's tower was both unnecessary and duplicative because American Tower has two existing towers in place. He further claimed that Uniti was moving the tower location and height without amending its CUP.

At the October meeting, Scott Buell spoke on behalf of Uniti, noting that Menahga's city code, which was written in 1978, is "silent" on cell phone towers. Buell said it was Uniti's understanding that the CUP is tied to use, not a specific design. After the wetlands on the property were delineated, Buell said the tower was slid 200 feet so the guyed wire is not in water-logged soil. No new property owners were affected by the move, and it will be farther away from the other towers. The tower height is unchanged, he said.

In November, American Tower Corporation filed a lawsuit in Wadena County District Court against the City of Menahga and Uniti Towers.

Revised CUP

On Dec. 21, Uniti Towers submitted an amended CUP application to reflect the new tower location, even though "the location shift is not material to the approved CUP because it does not change the design of the structure, the use that was approved nor the notice requirements or recipients per the city's zoning code."

In its application, Uniti also noted that the tower is 300 feet, but was filed as 312 feet with the Federal Communications Commission to allow room for a lightning rod, lights and potential, minor, as-built discrepancies.

In a Dec. 26 letter to the planning commission, City Administrator Gina Ellingson wrote that American Tower Corporation's complaint in the lawsuit "among other things, alleges that the city acted arbitrarily and unreasonably in approving Uniti's CUP application."

A city planning commission meeting scheduled for Dec. 27 to discuss the amended CUP was continued to Dec. 31 due to lack of a quorum. A winter storm blew through the area on Dec. 27.

Notice of the public hearing was published in the city's official newspaper and mailed to property owners within 350 feet of the proposed tower.

City Attorney Jeff Pederson explained that city council proceedings are conducted in accordance with Roberts' Rules of Order. Therefore, in the absence of a quorum, those present can fix the time at which to adjourn the meeting.

American Tower Corporation renewed its objections in letters dated Dec. 26 and Jan. 3, reasserting that the new tower was "unnecessary and will be detrimental to the community."

"Perpetually granting tower applications and having towers litter the landscape is not, I don't believe, in the best interest of the city," Delaney told the council.

Delaney said that there was no notice of termination from AT&T, therefore its five-year lease with American Towers has been renewed, effective Jan. 1.

Buell argued that the new Uniti tower "is necessary for public convenience in that we're building a nice, new structure. This is a different company and now there is a different option for carriers — a kind of development mindset."

Buell explained that Uniti has a master agreement with AT&T, and a site-specific memorandum will be signed once construction commences on the new tower. "Certainly, AT&T has a business interest in saving money with another company," Buell said, adding "it appears that ATC's strategy is to dely us past these deadlines of notice so that it puts AT&T in a bind, requires them to renew and is somewhat more costly for AT&T."

Council member Larry Karjala inquired about the impetus for the tower.

Buell said that AT&T approached Uniti.

Incoming Mayor Joan Liimatta said she opposed the new tower. "I think it's redundant, to say the least. I think a major corporation is pushing its way into our town, and I'm not happy with that. Also, the location of the tower — there is very little land within city limits that could be developed in the future," she said. "I would hate to see a developable property misused for a glaring tower that's totally unnecessary."

She suggested that the council withhold a decision until the new city council was seated.

Pederson advised the council to consider two findings: 1) Is Uniti's cell tower a public utility or a public service and 2) Is the proposed use "necessary for the public health, safety, convenience or welfare."

"You didn't choose this. You have two companies fighting over AT&T's money," Pederson told the council. "If we hadn't been sued, this would be all done. We brought this back now for reconsideration."

He recommended having the same council that was familiar with the issue make the determination.

Mayor Patrick Foss said the city has "a large number of acres in this city that are recognized as agricultural area." Development questions can be addressed in the city's capital improvement plan, he said.

Council member Roger Henstorf questioned whether the city should set a precedent by refusing this CUP when another hardware store or grocery store comes into town. "I don't think the city should be in the position of saying which business can come in," he said.

Council member Tim Ellingson agreed. Karjala said his mind was unchanged. Karjala recommended approval.

The council unanimously approved the CUP.

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