Cell-Phone Tower in Mesilla??

“What we have here is a failure to communicate.” (Was Paul Newman watching Mesilla blow up over a proposed cell tower?)

People told me Mesilla Mayor Nora Barraza was pushing a 60-foot Verizon cell-phone tower within Mesilla’s historic zone – and stifling dissent.

Few would want such a tower: unsightly; undermining the historic ambiance Mesilla takes great pains to maintain; noise and light pollution; even possible health issues (Verizon’s insurers refuse to cover health risks); and it would violate decades-old ordinances.

At a recent public meeting, The Mayor cut each speaker’s 3 minutes to 2; abandoned the usual practice of letting folks yield part of their time to someone else; and left passionate residents with carefully-constructed comments in the cold. Information on the tower situation was hard to come by. Officials said, “We can’t talk because of litigation.”

The ordinance outlawing such towers provides, “public property owned or otherwise controlled by the Town may be exempt.” Folks feared The Mayor would use that language to push through Verizon’s tower. Curious, I called Mayor Nora Barraza and asked to meet. I had questions. I also thought that the ordinance created no automatic exemption, but meant a specific project could be exempted if the Town so chose, through its board of trustees following normal procedures.

We had a pleasant talk. The Mayor denied wanting to push the deal through. She provided context: an earlier lawsuit that I’d just heard of wasn’t over. As I later learned, last November the U.S. Magistrate overturned the Trustees’ denial of a Verizon application and remanded the case to the Trustees for further proceedings, which meant Mesilla and Verizon had to talk. The Town has asked Verizon for alternatives.

Mayor Barraza told me that the Board of Trustees would have to decide the matter. The ongoing litigation limited what she could say; but she did not plan to jam this through. (I’m assuming that she never intended to jam this through, not that the uproar caused her to retreat.) She also said the tower would help with public safety.

People had such different views that I wondered how that had happened. Cutting the public’s comment time, which Barraza justified as necessary so everyone could speak, angered folks and seemed to disregard their concerns. Explanations such I’d received)  were apparently not offered to citizens generally. (Likely the litigation complicated communications.) Residents should know that this issue, will recur. Federal law favors Verizon, but takes local factors into account. So watch out – and speak up when necessary.

After interviewing the Mayor, I attended the start of a planning and zoning meeting. Twenty people were there to speak against the tower during public comment. Some had been informed that they could only comment on agenda items. (In city or county meetings, the public addresses agenda items as they come up, and the requirement for speaking during general public comment is to discuss only items not on the agenda.) How things are done matters. I saw citizens being muzzled in a curt, contemptuous manner. That doesn’t enhance community trust. The meeting was rancorous.

After trying to ask a question (with the chair calling for security), I split for the Plaza, to eat chocolate ice cream while sitting on a bench in the sun, listening to kids laugh. Grateful to be exactly where I was.

And I’m grateful to live in a thoughtful community with diverse views expressed by people who care.

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[The above column appeared Sunday, 27 November 2022, in the Las Cruces Sun-News, as well as the newspaper's website and KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and on KTAL (101.5 FM / http://www.lccommunityradio.org/) and be available on both stations’ websites.

[By the way, the U.S. Magistrate’s opinion in Cellco v Mesilla can be found here. Cellco is Verizon. The full case caption reads, CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS, Plaintiff, v. TOWN OF MESILLA, NEW MEXICO and TOWN OF MESILLA BOARD OF TRUSTEES, Defendants. I’ll summarize some points below, but the folks who are really interested in this issue should read the opinion and perhaps even the relevant law, or engage a lawyer.]

[A key point for folks organizing against this also emerges from that decision, although there should also be in minutes from the relevant Mesilla Trustees Meeting: faced with a proposal to put a cell-phone tower out by Highway 28 and Boutz Rd., the trustees apparently voted 4-0 against allowing that. (I gather Mayor Nora Barraza votes only to break a tie.) That should clarify that unless until further developments, the trustees are likely to be reasonably receptive to arguments against the current proposal, should it ever come up for a vote.]

[Basically, Verizon cut a deal with Susan Krueger to build a tower on her property. The Mesilla Planning and Zoning and Board of Trustees each voted against granting permission. Verizon sued.

[A federal law precludes towns, cities, and villages from simply excluding a cell-phone tower because they feel like it. The key impact of the Magistrate’s decision is that he did overturn the Board of Trustees rejection of the cell-phone tower proposal; but he made clear that had different grounds for the local decision been present, the decision might stand. That, plus the law, should tell trustees what grounds might suffice for a decision to stand and what won’t. That’s why everyone should read the decision. (I have not researched what has occurred in the case during the intervening year. The magistrate’s order was issued 29 November 2921.) For example:

(4) denying the application based on “generalized expressions of concern about the aesthetics of property value [sic] violates federal law”; and, (5) denying the application based “on unsubstantiated health concerns articulated by several community members . . . also violates federal law.”

On the other hand, emphasis on Mesilla’s unique character, and thus the enhanced importance of aesthetics and consistency in a town of particular historical significance that has taken great pains to retain evidence of, might be more successful, as, perhaps, would be a less “generalized” evidence of impact on property value. Obviously interested residents (and the town administration) should consult legal counsel on what grounds for opposition (1) are most appropriate under federal law (and town ordinances) and (2) are factually apparent here.]

[I have not researched the Telecommunications Act of 1996 (“TCA) or read other appellate cases construing and interpreting it.]

[I will note that the TCA (47 U.S.C. section 332) includes the following:

(7) Preservation of local zoning authority

(A) General authority

Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.

(B) Limitations

(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof-(I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

(ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.

(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.

(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.

(v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.