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My personal appeal of a Bell Atlantic Mobile cell tower has been set for oral argument in the Court of Special Appeals in Annapolis, Robert C. Murphy Courts of Appeal Building, 361 Rowe Blvd and Taylor Avenue, Annapolis, MD 21401, 410-260-1450. Arguments for the day start at 9:30AM, and are limited to 20 minutes per side. The case is Worsham v Bell Atlantic Mobile, Case # 1985, September Term 2000. You can park at the big stadium lot, more or less across the street, for a couple dollars.
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On October 11, 1999 a zoning hearing was held before the Harford County, Maryland Hearing Examiner regarding the application of Appellee Bell Atlantic Mobile ("BAM"). BAM seeks a Special Exemption to construct and operate a communications tower as part of BAM's wireless phone network. Appellant Michael C. Worsham attempted to take part in the hearing, but was only granted conditional standing by the Hearing Examiner, who heard brief oral argument on the issue of standing. On December 1, 1999 the Hearing Examiner issued a Decision approving BAM's application for a special exception. This decision also found that Appellant met the requirement for administrative standing at the October 11, 1999 hearing. Appellant was not informed of the Hearing Examiner's decision. Michael McMahon, another protestant at the October 11, 1999 hearing, filed a timely appeal for a final argument before the Harford County Council sitting as a Board of Appeals ("Board"). On December 27, 1999 the Harford County Council sent notice of the date of final argument. The same day, December 27, 2000, Appellant sent a letter to the County Council/Board administrator requesting to be heard during final oral argument. Final oral argument before the Board was held February 1, 2000. Appellant was not permitted to make an oral argument before the Board. On February 1, 2000, the Board of Appeals by a 7-0 vote ratified and adopted the Hearing Examiners recommendation to approve BAM's request for a Special Exemption to build the cell tower. On February 22, 2000 Appellant filed a timely appeal to the Circuit Court for Harford County, Maryland for judicial review of his case (case 12-C-00-423AA). Protestant Michael McMahon also filed a separate, timely appeal to the Harford County Circuit Court (case 12-C-00-530AA). On April 3, 2000 Michael McMahon filed a Motion To Stay Action of Administrative Agency. June 13, 2000 the Circuit Court granted an Order consolidating the two appeals for all purposes. On July 10, 2000 the Court denied the Motion To Stay. On July 14, 2000 a Notice of Dismissal was filed by then-protestant Michael McMahon dismissing his petition/appeal with prejudice. On August 22, 2000 oral argument was held before Harford County Circuit Court Judge Maurice M. Baldwin, Jr. At this hearing Appellee BAM withdrew its objection to Appellant's standing in the case. By a Memorandum Opinion and Order of the Court issued September 15, 2000, Judge Baldwin affirmed the Board of Appeals' decision to grant the Special Exception to Appellee BAM, and denied Appellant's Petition for Judicial Review. On October 13, 2000 Appellant timely noted an appeal to the Maryland Court of Special Appeals. On December 7, 2000, this Court issued an Order directing that this appeal proceed without a Prehearing Conference. |
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QUESTIONS PRESENTED 1. Whether the Hearing Examiner violated Petitioner's due process and equal protection rights by not granting Petitioner full standing at the hearing and the opportunity to fully cross-examine all hearing witnesses. 2. Whether the Hearing Examiner erred by not denying the cell tower based on the adverse aesthetic impact. 3. Whether the Hearing Examiner erred by not denying the tower based on the failure of the Harford County Department of Planning and Zoning to adequately consider the effects of cell phones on the health and driving safety of the community. 4. Whether the Hearing Examiner's decision violates substantive due process by allowing a cell tower for which there is no effective standard for, or adequate proof of safety to the general public from, the nonthermal health effects of wireless microwave radiation emissions. 5. Whether the Harford County Council violated Petitioner's due process rights by not giving Petitioner notice of the Hearing Examiner's Decision, and by not allowing Petitioner to present final oral argument before the Board of Appeals.
STANDARD OF REVIEW The standard of review of an administrative decision is whether the administrative agency's decision is in accordance with the law or whether it is arbitrary, illegal or capricious. Moseman v. County Council Of Prince George's County, 99 Md App. 258, 636 A.2d 499 (1993). When the issue is "concerned solely with the interpretation of the Harford County Zoning Code, [it is] an issue of statutory construction and a question of law. . . [and in] such a case the court's review 'is expansive, that is, the appellate court may substitute its judgment for that of the administrative agency.' " Harford County v. McDonough, 74 Md. App. 119, 536 A.2d 724 (1988) (internal citations omitted). However, a court may not substitute its judgment for the zoning body, absent an agency abuse of discretion, if the agency's action is based upon substantial evidence and the issue is fairly debatable: "If the issues before the zoning board are 'fairly debatable,' that is, that its determination involved evidence from which a reasonable man could come to different conclusions, the courts will not substitute their judgment for that of the administrative body." Anne Arundel County v. A-Pac Limited, 67 Md. App. 102, 506 A.2d 671 (1986).
STANDARD OF REVIEW FOR SPECIAL EXCEPTION REQUESTS Under Maryland law, adverse effects are implied in all special exceptions. "The standard to be considered by the Board is whether the adverse effects of the use at the particular location proposed would be greater than the adverse effects ordinarily associated with that use elsewhere within the [agricultural] zone." AT&T Wireless Services v. Mayor and City Council of Baltimore, 123 Md.App. 681 at 692, 720 A.2d 925 (1998). The AT&T Wireless court also stated that: [W]here the facts and circumstances indicate that the particular special exception use and location proposed would cause an adverse effect upon adjoining and surrounding properties unique and different, in kind or degree, than that inherently associated with such a use regardless of its location within the zone, the application should be denied. Furthermore, if the evidence makes the issue of harm fairly debatable, the matter is one for the Board's decision, and should not be second-guessed by an appellate court. Id. (citing Board of County Comm'rs v. Holbrook, 314 Md. 210, 217-18, 550 A.2d 664 (1988)). If there are adverse effects greater at the proposed location than there would be elsewhere in an agricultural zone, the application should be denied.
STATEMENT OF FACTS Applicant BAM requests a special exception approval to locate a communications tower in an Agricultural zone pursuant to the Harford County Code. The tower will be located such that the setback of the tower from all property lines shall be equal to the height of the tower plus 10 feet. BAM's proposed tower site is at 1714 Morse Road, Forest Hill, Maryland. At the zoning hearing on Oct. 11, 1999, Brian Stover testified for BAM. During cross-examination by Appellant, he stated that the tower is almost 200 ft high, and would be about 98 feet above the trees in the proposed site. E89, lines 16-18. Mr. Stover also stated that BAM has reciprocal agreements with other wireless providers to collocate antennas on each other's towers. E90-92. Michael McMahon testified as a protestant that his view of the tower from his house would be probably be "straight smack into the tower." E107. His house would be about 1400 feet from the proposed tower. E109. Dennis Sigler testified for the Harford County Department of Planning and Zoning, which recommended approval of the requested Special Exception. E93-105. Mr. Sigler stated that the tower would be in compliance with the County requirements for Special Exceptions. E98-99. He testified that the tower is about 210 feet from the Route 23 highway right of way, and 280 feet from the traveled portion of Route 23, E94, and that the tower is 660 from the nearest residential home. E95. He testified that the area is a very rural area of the County. E102, line 9. Mr. Sigler admitted that the County Planning and Zoning Department does not consider the effect that the increased cellular phone coverage will have on traffic by people using cell phones while driving. E105, line 11. Under cross-examination Mr. Sigler testified that he did not know whether there could be a greater impact on people driving while using their cell phone if the tower was located at another location. E113, line 20. He indicated that by merely moving the tower across to the other side of the Route 23 highway, where it is more open, that there may be more visual impact. E114, line 5. In response to BAM's attorney, Mr. Sigler stated that the tower is built primarily to serve people using cell phones to talk while on the highway. E15, line 3. Appellant Michael Worsham appeared as a Protestant, and both testified and conducted cross-examination of several of BAM's witnesses. Mr. Worsham testified that the tower would have many adverse effects. Since his testimony is integral to the arguments made here, those facts will be introduced during the argument. Similarly, the input of Jules Cohen, an radiation and frequency expert testifying for BAM, are introduced during the argument. Overall, Mr. Cohen testified that the tower would be within the Federal Communications Commission (FCC) radiation standards for cell towers. |
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ARGUMENT I. APPELLANT'S DUE PROCESS AND EQUAL PROTECTION RIGHTS WERE VIOLATED WHEN THE HEARING EXAMINER DID NOT GRANT PETITIONER STANDING AT THE HEARING AND ALLOW FULL CROSS-EXAMINATION OF ALL HEARING WITNESSES. At the October 11, 1999 hearing, Appellant Worsham was not allowed by the Hearing Examiner to fully cross examine all witnesses. This was a result of BAM's repeated objections to Appellant's standing at the hearing. E86, line 12. As a result, the hearing examiner gave Appellant Worsham only a limited opportunity to cross-examination Mr. Stover, the first witness for BAM: THE EXAMINER: If you have just a few limited questions you would like to ask of Mr. Stover, I will allow those, but it's going to be limited. E31, lines 11-13 (emphasis added). Next, when Appellant attempted to cross-examine Mr. Sigler, a representative of the Harford County Planning and Zoning Department, the examiner again reiterated the limitations on cross-examination, and BAM's counsel again objected to Appellant's standing at the hearing. THE EXAMINER: Is there anyone here with any questions of Mr. Sigler? Mr. Worsham, again with the same limitations I mentioned before. MR. YOUNG: Just so I can have a continuing objection. THE EXAMINER: Standing objection. MR. YOUNG: Thank you. E100, lines 1-8 (emphasis added). Later, when Appellant attempted to cross-examine BAM's expert, the examiner once again placed limits on Appellant: MR. WORSHAM: Yes, I do. Can I ask him some questions? THE EXAMINER: I will limit you to just a couple questions. E119, lines 2-5 (emphasis added). Here the Hearing Examiner limited Appellant's ability to cross-examine the qualifications of BAM's expert, who later testified regarding health effects, despite not even being a PhD. Thus the record shows that the Appellant was under a continuing restriction by the Hearing Examiner as a result of BAM's continuing objection to Appellant's standing. BAM's attorney repeated his objection to Appellant Worsham's standing yet again when Appellant attempted to cross-examine Mr. Cohen, BAM's radiofrequency expert. See E128 and following discussion. During the discussion on whether Appellant had standing, BAM's counsel stated that "I believe Mr. Worsham is trying to create standing for himself by indicating that there is some effect on him from radiation or radiation traveling. And, first of all, I think he has to show in order to get standing that that affects him in a manner different than it does the public generally." E135, lines 4-10. BAM's argument was an erroneous statement of the legal standard for standing at an administrative hearing. The standard of being effected differently from the public generally is the standard applicable for judicial standing. Bryniarski v. Montgomery County, 247 Md. 137, 230 A.2d 289 (1967). The Court of Appeals clearly distinguished the lower standard applicable for standing at administrative versus the higher standard applicable in judicial proceedings in Sugarloaf Citizen's Assoc. v. Dept. of Env't, 344 Md. 271, 686 A.2d 606 (1996), a case Appellant pointed out to the examiner during the standing discussion. E136, line 21. The Hearing Examiner did not make a conclusive decision regarding Appellant's standing at the hearing, and asked for briefs on standing. In contrast to earlier witnesses, the Examiner allowed the Appellant to cross-examine BAM expert witness Jules Cohen on the merits without the prior express limitations on previous witnesses, at least initially. E140, lines 15-19. However, the examiner nonetheless did prevent Appellant from fully cross-examining Mr. Cohen on the topic of cell phone health effects, stating her opinion that the effects on cell phone users is not relevant at the hearing. E164-165. The examiner was incorrect and abused her discretion by limiting cross-examination of earlier witnesses, and also regarding the issue of health effects from cell phones. All parties must be given the opportunity to cross-examine witnesses, and actual prejudice to the party asserting the right to cross-examine need not be shown to establish a denial of procedural due process. Town of Somerset v. Montgomery County Bd. Of Appeals, 245 Md. 52, 225 A.2d 294 (1996). Since the cell tower's purpose is to serve cell phone users, it is very relevant if the cell phone users of BAM service, as distinct from the neighboring landowners or the public at large, are negatively effected by the intended effects of the tower, including radiation transmitted to and from cell phone users. It is possible that the cumulative effect of radiation exposure from both the cell phones, and the general exposure from the cell tower itself, may exceed the FCC guidelines for general public exposure. This critical point should be allowed to be explored, even under BAM's claim of federal preemption over the health effects of microwave radiation. The federal law BAM relies on states that: 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. 47 U.S.C. § 332(c)(7)(B)(iv). Even under the most favorable interpretation to BAM, this clause does allow a local government to probe and question as to whether a wireless facility will comply with the FCC's emission standards. If the cross-examination revealed that it does not, or that the additional exposure from the tower on a cell phone use exceeds an applicable standard, that is relevant. Currently, there is no FDA standard for cell phone radiation, and the Eastern District of Louisiana recently ruled in a suit against cell phone manufacturers that the FDA's "position papers and their participation in the Federal Communications Commission's guidelines are not standards as required for preemption under 21 U.S.C.A. 360(k)(k)" and that the "the FDA's position is internally inconsistent." See the January 23, 2001 Minute Entry in Naquin v. Nokia Mobile Phones, Inc., U.S. District Court for the E.D. of Louisiana, Civil Action 00-2023, attached in this Brief's Appendix at 1. Thus, the FCC standard is the only standard with any potential legal or practical relevance to cell phones or cell tower radiation. Appellant should have been allowed to cross-examine BAM's expert and elicit testimony regarding whether FCC exposure levels are exceeded by cell phone users as a result of the proposed tower. It is important to note the due process effect on Appellant of the Examiner's decisions (1) not to grant Appellant standing at the hearing, and (2) to limit cross-examination. Both Appellant, and counsel for BAM had appeared at previous cell tower hearings in Harford County. At the time of the Oct. 11, 1999 hearing, Appellant was representing a client (Lisa Nowakowski) who was appealing a denial of standing by the Hearing Examiner in a different cell tower case and appeal in which BAM's counsel also served as counsel. This separate case ultimately lead to an unreported opinion of this court granting Ms. Nowakowski standing. See Nowakowski v. Nextel Communications of the Mid-Atlantic, unreported decision filed July 27, 2000, attached in the Appendix at 9. This decision expanded the general standard for standing at Harford County zoning hearings beyond the one-mile limit that hearing examiners had until then regularly applied at hearings, at least for cell towers. Appellant was thus laboring at the Oct. 11, 1999 hearing under a lack of standing or knowing whether he would be ultimately be granted standing in the instant appeal. BAM, as a contract lessee to the property for the proposed tower, was under no such disability. BAM, fully confident of its standing, was planning to challenge Appellant's. In advance of the Oct. 11, 1999 hearing BAM had prepared an Exhibit with an indication of Appellant's property in relation to the proposed tower site, which BAM moved into evidence. E194, lines 11-18. However by the time of the oral argument in Circuit Court on August 22, 2000 in the instant appeal, this Court had rendered its July 27, 2000 decision in Nowakowski v. Nextel, which finally prompted BAM to withdraw its object to Appellant's standing, E206, lines 1-14. Appellant is under a real disability with regard to preparing for a hearing, because whether he will even be heard is not known prior to the hearing. Appellant cannot make an informed decision on how much effort and planning to make for a hearing, including whether to undertake the time and expense of hiring experts, or from subpoenaing other persons using the Examiner's subpoena powers. Here, the Hearing Examiner's decision to reserve a decision on standing was effectively a decision not to grant Appellant standing at the hearing. This left Appellant in limbo both during the hearing, and even after the hearing was over when the record had closed. Even BAM's counsel expressed frustration over Appellant's limbo status, seeking a decision "once and for all whether he is participating and has standing or does not." E129, lines 10-12. While the Examiner may have ben trying to strike a happy medium by allowing limited questions, the bottom line that it is BAM's and its counsel that created the issue by repeatedly objecting to Appellant's standing, only to later withdraw this objection when this Court issued the Nowakowski opinion. BAM, not Appellant, should bear the fruits of its actions in creating a standing dispute not adequately resolved at the hearing. One can imagine how an applicant would react if they did not know they had standing coming into, or during, a zoning hearing. Due process and equal protection requires that a protestant (Appellant) be treated the same. |
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II. THE HEARING EXAMINER ERRED BY NOT DENYING THE CELL TOWER BASED ON THE ADVERSE AESTHETIC IMPACT. Mr. Stover, testifying for Bell Atlantic, stated that the proposed tower will be 200 feet tall, and that trees in the area are about 100 feet tall. E89, lines 15-18. The antennas and transmitters at the top of the tower would therefore be visible for 100 feet above the existing trees. Dennis Sigler, an employee of the Harford County Department of Planning and Zoning, testified that the County does not take into account the combined aspects of more than one tower, and essentially only review tower applications site by site. E113. Appellant also stated that he uses the roads near where BAM's tower would be, and objected to the views of the tower going and coming to his home. E182-183. Mr. McMahon, the other protestant who testified in opposition to the tower, stated that the tower location would be in the middle of the view from a sunset gazebo he wishes to build at his home. E107, E178. He also made reference to an area not far away from the proposed site, where there were existing transmission power lines where a cell tower would be in an area already aesthetically spoiled, or at least not have the negative effect it would in the proposed area. E179. BAM's tower is proposed for a location immediately adjacent to and within 280 feet of Route 23, a major highway within the County. It would clearly be more visible to, and seen by more people there, than it would in another less traveled part of the agricultural zone which is not adjacent to a major highway. BAM's counsel pointed out that cell towers are generally sited such that "the idea is to be located to a road" and that it is "basically a highway or traveler use." E114, lines 18-19. E115, lines 1-2. Thus, by design, cell towers are purposefully located near major roads. This coincides in most zones at a location where they will have the most effect on the public. If any of that effect is negative, or different in quality at that location than elsewhere, then the application can be found to have an adverse impact greater or different than that of another location elsewhere in the same zone. The proposed tower, rising 100 feet over the tree line in an a rural area, will clearly have an adverse aesthetic effect. This effect along Route 23, a major road, will be greater than it would be elsewhere in the same zone. It will also be greater where proposed than if it were located near the existing power transmission lines which protestant McMahon pointed out. E179. The Telecommunications Act of 1996 ("1996 Act"), Pub. L. No. 104-104, 110 Stat. 56, established a National Wireless Telecommunications Siting Policy, codified at 47 U.S.C. § 332(c)(7). The law requires that local entities may not unreasonably discriminate among providers of functionally equivalent services, and to act on any request for authorization to place, construct, or personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality. 47 U.S.C. § 332(c)(7)(B)(i)(I) and (B)(ii). This provision is of questionable constitutionality, as it runs afoul of the Tenth Amendment by precipitating a federal commandeering of the state zoning process. Nonetheless the practical effect is that once one cell tower goes up in an area, a local zoning entity is essentially required by law to approve similar requests by other providers which meet the other applicable zoning criteria. Thus, the approval of one cell tower in an area, particularly the first tower in an area, means more towers are sure to come, so that the law insures a cumulative impact, which the County failed to consider. For the above reasons, BAM's proposed location for the tower will have different and negative aesthetic effects than it would if it were located elsewhere in the same agricultural zone. The Hearing Examiner failed to address this impact, and the decision in this regard was an abuse of discretion. Amazingly, the Circuit Court's decision did not even address this issue at all, despite Appellant raising it in his Memorandum as a Petitioner for Judicial Review in Circuit Court. |
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III. THE HEARING EXAMINER ERRED BY NOT DENYING THE TOWER BASED ON THE FAILURE OF THE HARFORD COUNTY DEPARTMENT OF PLANNING AND ZONING TO ADEQUATELY CONSIDER THE EFFECTS OF CELL PHONES ON THE HEALTH AND DRIVING SAFETY OF THE COMMUNITY. The traffic criteria required to be evaluated by the County under Section 267-9I of the Harford County Code is: "Traffic conditions, including facilities for pedestrians, such as sidewalks and parking facilities, the access of vehicles to roads; peak periods of traffic, and proposed roads, but only if construction of such roads will commence within the reasonably foreseeable futures." E42. Recently, the increasing concern over the rising number of people who drive while using a hand-held cell phone has resulted in the enactment of laws banning or limiting this dangerous practice. For example see the Suffolk County, N.Y. law passed in 2000, attached in the Appendix at 11. Dennis Sigler testified that the County does not consider the effects of cell phones on driving. E105. By not doing so, the County does not take into account any evidence that the risk of accidents increase when people drive and use a cell phone at the same time. The location BAM has chosen for their tower, immediately adjacent to a major thoroughfare (Route 23), makes it clear that BAM's target market for the proposed cell tower is drivers. That this is the case was confirmed by BAM's counsel, who emphasized the fact that the whole idea of tower locations is to be close to the road. E114-115. The traffic impact of a tower is not just the service vehicles that come by once a week to check on the tower. The main traffic impact is BAM's target market - the driving public. To ignore the public who drive and talk on the cell phone as a result of the proposed tower, would be akin to analyzing a proposed mall, and concluding that it will have no major impact on traffic because the number of service personnel and employees working at the mall is small, and totally ignoring the traffic impact of all the cars flocking to the mall. Although the effect of this tower on the driving public will be greater next to this major road, than at a location elsewhere in the agricultural zone that is not next to a major road, this effect is not even considered by the County, according to testimony by its own Zoning Administrator. This makes the County's staff report questionable and unreliable - specifically, Staff Report criteria (2) on traffic conditions and peak periods of traffic. Since the County did not even consider the impact of cell towers on drivers using cell phones while driving, and since traffic conditions during peak periods is a consideration required to be reviewed, the tower should be denied until such information is adequately considered and analyzed by the County, presented before a Hearing Examiner via a Staff Report or through testimony, and subject to cross-examination. The Hearing Examiner's decision regarding the potential impact on driving safety due to the cell phone was arbitrary and capricious, and was an abuse of discretion to ignore the major traffic impact of the proposed tower. |
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IV. THE HEARING EXAMINER'S DECISION VIOLATES APPELLANT'S SUBSTANTIVE DUE PROCESS RIGHTS. A. The Hearing Examiner's Decision Violates Substantive Due Process By Allowing A Cell Tower For Which There Is No Effective Standard For, Or Adequate Proof Of Safety To The General Public From, The Nonthermal Health Effects Of Microwave Radiation Emissions BAM's expert, Jules Cohen testified that the bulk of the epidemiological studies done have been with respect to power line frequencies, E147, and that there are no peer-reviewed studies examining the long-term effects of microwave range radiation on humans. E148, line 18. Regarding the FCC radiation standard established to supposedly protect human health, Mr. Cohen admitted that the primary basis of the standard is animal studies prior to 1992. E145, line 2. Mr. Cohen could not say that the federal health agencies, EPA, FDA, NIOSH, and OSHA concur with Mr. Cohen's statement that the FCC standard is protective of all possible health effects. E146. The net effect of BAM's application as the above testimony brings out is that although there is a standard for radiation based on animal studies, there are no real studies on human effects. Thus the operation of the cell tower itself becomes part of the basis of an uncontrolled study on the effects on humans. The burden should not be on the Appellant or others in the general population to demonstrate the safety of BAM's proposal over the long term, the length of time a tower application and the wireless network build out presumes, and also the period over which certain ill effects would appear - over the long term. It violates substantive due process for Harford County and the FCC by their actions to subject Appellant and other people without their consent, and in some case without even their knowledge, to microwave radiation exposure on a long term basis which is not even monitored. Of particular concern are certain sub-population groups that are effected differently by any phenomena, such as radiation. These include children, the elderly, persons with reduced immune systems, and persons with electro-sensitivity. Mr. Jules Cohen, BAM's frequency expert, made inconsistent statements concerning the tower emissions. He stated that the tower would be 3,000 times below the FCC radiation standard, E122, line 2, and alternatively, 4,500 times below the maximum permissible exposure. E125, lines 5-6. However, Mr. Cohen agreed with the following statement of the FCC:
E155, citing Office of Engineering & Technology, Federal Communications Commission, Bulletin No. 56, Questions and Answers about Biological Effects and Potential Hazards of Radio frequency Radiation, at 5 (1989). Mr. Cohen also generally agreed, E153, line 12, with a statement from the same FCC bulletin that stated: A number of reports have appeared in the Russian and East European literature claiming a wide range of low-level biological effects. The low-level effects on animals and humans reported in the Soviet and East European literature have included behavioral modifications, effects on the blood-forming and immunological system, reproductive effects, changes in hormone levels, headaches, irritability, fatigue, and cardiovascular effects. However, further research is needed to confirm the existence of these effects and to determine whether they might constitute a health hazard, particularly with regard to long-term exposure. Mr. Cohen stated that in his opinion the above passage referred to radiation levels in the range of 10 to 25 FW/cm2. E153, line 15. This compares to the levels at Appellant's house, which according to Mr. Cohen are about 0.0066 FW/cm2. E151, line 1. The relationship between the range of radiation exposure at which the Russian East European literature reports a wide range of biological effects, 10-25 FW/cm2, and the levels at Appellant's house, 0.0066 FW/cm2, is a factor of roughly 1500-3800. This is dramatically less than the much more rosy safety factor of 4,400,000 which BAM's attorney tried to establish. E148, line 5. Mr. Cohen disagreed though with a conclusion in a 1995 report from the Environmental Protection Agency, read at the hearing, that "The thesis that the 1992 ANSI/IEEE recommendations are protective of all mechanisms of interaction is unwarranted because the adverse effect level in the 1992 ANSI/IEEE standard is based on a thermal effect." E162, lines 9-10. It seems clear from this testimony that the science of non-thermal health effects of microwave radiation is not entirely established. Testimony at the hearing showed that the FCC does not have expertise in health and safety matters, and depends on other federal agencies. E143, lines 11-12, E146. The EPA, one of the agencies used by the FCC, issued a report which shows that the ANSI/IEEE standard for RF emissions adopted by the FCC does not protect against nonthermal effects. E161-162. Appellant should not bear the brunt of establishing the science, and certain not unwillingly. To force Appellant to radiation exposure for which the standard is not clearly established for nonthermal effects violates substantive due process. BAM bears the burden of proof that their proposed tower network, including the instant application, is completely safe over the long term for all potential effect on humans, not just the effect on animals which is the limit of current experimental research. Until it meets this burden, it is an unconstitutional substantive due process violation under Section 1 of the 14th Amendment to the U.S. Constitution for Harford County and the FCC to collectively permit and license the proposed cell tower and allow what amounts to an uncontrolled human microwave radiation experiment.
B. The 1996 Telecommunications Act Does Not Preempt Local Regulation of the Health Effects from Microwave Radiation Section 601(c) of the 1996 Act expressly prohibits any implied federal preemption over state or local laws: "No implied effect. - This Act and the amendments made by this Act shall not be construed to modify, impair, or supersede Federal, State, or local law unless expressly provided in such Act or amendments." The act also retains local authority to impose requirements to protect the public safety and welfare, and consumer rights. 47 U.S.C. § 253(b) ("State regulatory authority: Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254 of this title, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers."). Nonetheless, BAM argues that Harford County's ability to regulate or even consider the health effects from cell towers is preempted by the 1996 Act. This is based on an erroneous expansion of the limited Congressional preemption of the environmental effects of radio frequency emissions so as to include health effects on humans of radiation. The section of the 1996 Act at issue, repeated here, is: 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. 47 U.S.C. § 332(c)(7)(B)(iv). BAM's argument is contrary to the 1996 Act's provisions prohibiting implied preemption, as well as long-standing federal preemption doctrine, discussed in the following section.
C. There Is A Presumption Against Federal Preemption In Areas Of Health And Safety 	In addition to the provisions of the 1996 Act retaining local control over any implied preemption, case law clearly demonstrates that federal preemption is not presumed, especially in matters of health and safety: "As a matter of statutory construction congressional intention to displace local laws in the exercise of the commerce power is not, in general, to be inferred unless clearly indicated by those considerations which are persuasive of statutory purpose. This is especially the case when public safety and health are concerned." Mauer v. Hamilton, 309 U.S. 598, 614 (1940). Relevant here is that the "regulation of health and safety matters is primarily and historically a matter of local concern." Hillsborough County, Florida v. Automated Med. Lab., Inc., 471 U.S. 707, 719 (1985). When the ". . . the field that Congress is said to have pre-empted has been traditionally occupied by the States 'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' " Hillsborough, 471 U.S. at 716. This Court should properly place the burden on the entity (Appellee) seeking to establish Congressional preemption.	Congress has previously distinguished adverse environmental effects from adverse human health effects disjunctively in several environmental statutes. The Toxic Substances Control Act defines the term "health and safety study" to mean "any study of any effect of a chemical substance or mixture on health or the environment or on both." 15 U.S.C. § 2602(6). A second and even clearer distinction is in the Clean Air Act (CAA), which provides that: The Administrator shall periodically review . . . pollutants which present, or may present, through inhalation or other routes of exposure, a threat of adverse human health effects (including, but not limited to, substances which are known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive dysfunction, or which are acutely or chronically toxic) or adverse environmental effects whether through ambient concentrations, bioaccumulation, deposition, or otherwise . . . 42 U.S.C. § 7412(b)(2) (emphasis added). The CAA defines the term "adverse environmental effect" to mean "any significant and widespread adverse effect, which may reasonably be anticipated, to wildlife, aquatic life, or other natural resources, including adverse impacts on populations of endangered or threatened species or significant degradation of environmental quality over broad areas." 42 U.S.C. § 7412(a)(7). This definition clearly does not include human health effects. These Congressional definitions do not support the argument that the 1996 Act's preemption of "environmental effects" extends to encompass human health effects. In addition to the Congressional distinction between "health" and "environmental" effects, at least one federal court has distinguished "health effects" from "environmental effects" specifically in the context of the 1996 Act. In Iowa Wireless Services, L.P. v. City of Moline, Ill., 29 F. Supp. 2d 915 (C.D. Ill. 1998) the court stated that: While it is clear from the record that the City of Moline considered potential health effects of the tower, it is less clear that they considered environmental effects. In any event, Moline's position, which this Court finds correct, is that this statute prevents the denial of a permit on the sole basis that the facility would cause negative environmental effects. Here, even if it were to be concluded that the expressed "health concerns" fell within the meaning of "environmental effects," the decision which denied IW's application articulated other reasons besides that of environmental concerns. Id. at 924 (emphasis in original). In Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311 (2nd Cir. 2000) the Second Circuit discussed 47 U.S.C. § 332(c)(7)(B)(iv) and recognized that the term "environmental effects" is not defined. Id. at 325. Other courts do appear to agree with BAM' preemption position. However, as one example illustrates, the Fourth Circuit's opinion did not address the issue of preemption, which was not raised or argued in that case, but rather, without any discussion or elucidation, the court simply assumed in a 15 word footnote that preemption of "environmental effects" extends to encompass "health effects." AT&T Wireless PCS, Inc. v. City Council of Virginia Beach, 155 F.3d 423, 431 at n. 6 (4th Cir. 1998) ("A few citizens did mention health concerns from radio emissions, a concern the Act precludes.").
D. There Is No Federal Preemption Over "Operation" Of Wireless Communications Facilities. The preemption section relied on by BAM only preempts local regulation of the placement, construction and modification of a cell tower based on the environmental effects of radio frequency (RF) emissions. The law does not prohibit any consideration of health and safety effects, in contrast to environmental effects, of a cell tower. Notably, the law does not prohibit local regulation of any aspects of the "operation" of the tower, whether health and safety, or environmental. The word "operation" is not in 47 U.S.C. § 332(c)(7)(B)(iv). The words "placement, construction and modification" do appear, but the word "operation" does not. The legislative history shows that Congress had placed "operation" in predecessor legislation. In the House bill, the FCC would have pre-empted State or local regulation over "placement, construction, modification, or operation" of environmental effects of radiation. House Report 104 (Part 1), 104th Cong., 1st Sess., 25 (1995). In the final legislation that emerged from the conference committee, the word "operation" was removed. Congress reasonably intended to leave room for State and local regulation over the environmental, as well as health and safety effects of the "operation" of personal wireless service facilities. This is especially understandable since the FCC has no expertise over environmental effects, or health and safety matters. During the hearing on Oct. 11, 1999, BAM's expert agreed that the FCC defers to several other Federal agencies regarding the health and safety aspects of RF emissions. BAM can not claim there is federal preemption over wireless operation by reading into the statute the word "operation," after Congress deliberately left it out. Thus, there is no federal preemption of local regulation of the health effects of microwave radiation from wireless facilities, and certainly not over facility "operation." It was legal error for the examiner to adopt this position, including denying Appellant the opportunity to cross-examine BAM's expert regarding the health effects of the tower on users of cell phones. E164-165.
E. FCC Preemption of Health Effects From Cell Tower Radiation Would Violate The Nondelegation Doctrine To interpret the 1996 Act to preempt local control over health issues would grant the FCC excessive legislative discretion in the area of health and the environment, and violate the constitutionally based nondelegation doctrine. The FCC has admitted that "The Commission does not have the expertise to make independent judgements on such alleged health effects as 'electrosensitivity' or other reported effects on human health. This is the responsibility of the federal health and safety agencies and other qualified public health organizations." Second Memorandum Opinion and Order, 12 F.C.C.Rcd. 13494 (1997) at 111. The FCC also recognizes that Congress gave the Environmental Protection Agency (EPA) the authority to provide guidance to all Federal agencies in forming radiation standards. 42 U.S.C. § 2021(h). Regarding legislative delegation, the Supreme Court has recognized that "If such a power is to be exercised at all, it can only be satisfactorily done by a board or commission, constantly in session, whose time is exclusively given to the subject." J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 408 (1928) (citation omitted). Since the FCC is not such a board or commission, and the EPA is the authorized agency for developing radiation standards, one must presume Congress did not intend to unconstitutionally delegate legislative authority to the FCC. The logical conclusion is that local health regulation over RF emissions may not be preempted by the FCC under the jurisdiction of the 1996 Act. To do otherwise allows the interpretation of federal statutes and promulgation of regulations by a federal agency that admits it has no expertise in the area it is interpreting. It also allows the FCC to determine the extent of federal preemption in the area it admittedly has no expertise in. Secondly, the FCC preemption would violate the non-delegation doctrine because Congress did not provide an "intelligible principle" for the FCC to follow. Mistretta v. United States, 488 U.S. 361, 371-372 (1989) (citation omitted). Congress's delegation in § 704(b) of the 1996 Act consisted of simply a reminder for the FCC to complete an Environmental Impact Statement (EIS) action in Docket 93-62. To rule that a pre-existing EIS requirement is proper delegation of an "intelligible principle" would allow Congress to delegate legislative power simply by reminding an agency to perform an EIS. Such a vague Congressional directive would not be permissible delegation even for an agency which has expertise in the delegated area. Congress simply did not preempt local control over "health effects" from wireless radiation in clear unambiguous language, and any attempt to do so would be an unconstitutional delegation of power to a non-expert agency in health issues. |
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V. THE HARFORD COUNTY COUNCIL VIOLATED PETITIONER'S DUE PROCESS RIGHTS BY NOT GIVING PETITIONER NOTICE OF THE HEARING EXAMINER'S DECISION, AND BY NOT ALLOWING PETITIONER TO PRESENT FINAL ORAL ARGUMENT BEFORE THE BOARD OF APPEALS. Petitioner was not provided notice of the Hearing Examiner's decision by Harford County. The "Notification Of Zoning Hearing Examiner's Decision," which is sent out by Harford County whenever a hearing decision has been made, states on the bottom that among those who are sent copies of the decision are "Applicant/Attorney; Opponents/Attorney; Adjoining Property Owners; People's Counsel; Registered Hearing Attendees; Department of Planning and Zoning; Department of Law." E188, bottom. Since Appellant Worsham was an opponent of the application, appeared at the hearing as a protestant, testified, and cross-examined witnesses, had his address read into the record (see E131, lines 5-6), and ultimately won his standing argument, he obviously should have been notified of the Hearing Examiner's decision. The failure of the County, either separately or through the Hearing examiner's office, to notify a party to the proceedings about the Examiner's decision is a violation of procedural due process, and Maryland law. Morris v. Howard Research & Dev. Corp., 278 Md. 417, 365 A.2d 34 (1976). The constitutional requirements for notice and due process are not limited to those that Harford County might require in its own Code. Despite the failure of Harford County to notify Appellant of the Hearing Examiner's decision, Appellant learned of the decision inadvertently through another source on December 27, 1999, a week after the deadline for appealing the Hearing Examiner's decision had expired, December 21, 1999. As soon as Appellant learned of the decision, he sent the Harford County Council Administrator James E. Massey, Jr. a letter on December 27, 1999, requesting to be heard in Final Argument before the County Council sitting as a Board Of Appeals. E198. A copy of this letter was also provided to BAM's attorney. Id. That very same day, December 27, 1999, Mr. Massey issued the formal "Notice Of Final Argument Before The Board Of Appeals," announcing that final argument before the Board would be held on February 1, 2000. E197. Despite having over a month, neither Mr. Massey or BAM's attorney responded or objected to Appellant's December 27, 1999 letter requesting to be heard. Two other persons, Harford County Councilwoman Susan Heselton and protestant Michael McMahon, appealed the Hearing Examiner's decision in a timely manner. Since the Hearing Examiner's decision was timely appealed by other persons, BAM was not prejudiced in any way by Appellant's notice of appeal, which was technically late, but for reasons beyond Appellant's control. BAM did not make any objection to Appellant's request to be heard in final argument. Appellant Worsham appeared in the Council Chambers on February 1, 2000, prepared to make a final argument, but was not allowed by the Council Administrator to make a final argument before the Board. The failure of Harford County to allow Appellant to make a final argument before the Board is a clear violation of Petitioner's due process rights under the 14th Amendment to the U.S. Constitution to be heard, when the reason for the late appeal was the County's fault, when Appellant made a reasonable request under the circumstances to be heard which Appellee was kept aware of, and when BAM and no other parties were prejudiced. The right to argue before the Board is important one, as the standard applied by the Board is more expansive than that of a reviewing Court. A Court must accept the Board's findings of fact if they are fairly debatable. Anne Arundel County v. A-Pac Limited, 67 Md. App. 102, 506 A.2d 671 (1986). The Board is under no such mandate, and can reject the Hearing Examiner's findings of fact even if they are fairly debatable.
CONCLUSION BAM's tower application should be denied because there are adverse effects different in kind at the proposed location than there would be elsewhere in the agricultural zone.	BAM specifically chose a location next to Route 23, a major Harford County highway, to service as much of the population as possible within this agricultural zone. It would not be as profitable for BAM to place the tower in a more remote location within the same zone. Thus, the very nature and choice of BAM's application means by definition that more people will be effected at the proposed location than elsewhere in the zone, whether adversely or positively. Additionally, the tower must be denied because exposing Appellant and the public in an uncontrolled and unmonitored fashion to the unknown effects of microwave radiation coming from the tower and other towers in BAM's wireless network is an unconstitutional radiation experiment on the public, in violation of principals of substantive due process under the 14th Amendment. Even if the Court was to find on this Record that BAM's application could be approved, the Record also shows that Appellant was not allowed full participation in the hearing, in violation of his due process rights. The Hearing Examiner abused her discretion both because of the standing issue, which was not resolved until after the hearing, and due to the Examiner preventing cross-examination regarding the topic of cell-phone safety. Finally, Appellant was not provided notice of the Examiner's decision, and subsequently, not permitted to make a final argument before the Harford County Council sitting as a Board of Appeals on February 1, 2000. This is an additional violation of Appellant's rights to procedural due process. At a minimum, this case should be sent back to the Board correct these procedural deficiencies. For all of the above reasons, BAM's application must be denied, or alternatively, sent back to complete the hearing process properly, with due process fully observed, both before the Hearing Examiner and the Board of Appeals.
Respectfully submitted, March 15, 2001 This Appellant's Brief was printed in "Times New Roman" 13 point font.
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 15, 2001, two copies of this Appellant's Brief was mailed via first class to Mr. Albert Young, Esq., attorney for Bell Atlantic Mobile, Brown, Brown, & Brown, P.A., 200 South Main Street, Bel Air, Maryland, 21014.
Michael C.
Worsham, Esq. |
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