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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re Application of Missouri RSA No. 7 Limited Partnership dba Mid-Missouri Cellular For Mobile Radio Service Authorization Lexington, Missouri ) ) ) File No. 02306-CL-MP-97 ) ) ) ) ) ) MEMORANDUM OPINION AND ORDER Adopted: August 10, 1998 Released: August 10, 1998 By the Chief, Commercial Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. The Wireless Telecommunications Bureau ("Bureau") has before it objections filed by the State of Missouri Department of Natural Resources, an Ad Hoc Committee Opposing Tower Location, and Mary Ault, Shirley Childs, John Maki, Teresa Maki, and Katherine VanAmburg, all residents of the City of Lexington, Missouri, who request the Bureau to deny an application for authorization filed by Missouri RSA No. 7 Limited Partnership (doing business as "Mid-Missouri Cellular"). Mid- Missouri Cellular's application seeks the Commission's authorization to operate a cellular radiotelephone communications facility from an antenna structure to be constructed within a district in Lexington, Missouri, that is listed on the National Register of Historic Places. The petitioners argue that Mid-Missouri Cellular's proposed 160 foot antenna structure will adversely affect the historic district and the residential neighborhood, and therefore it should not be constructed there. For the following reasons, the Commercial Wireless Division, acting under delegated authority from the Bureau, has determined that it is in the public interest, convenience, and necessity to deny all objections and to grant Mid-Missouri Cellular's application for authorization, subject to Mid-Missouri Cellular's compliance with its obligations under a Memorandum of Agreement that it has signed regarding this proposed structure. II. BACKGROUND 2. Mid-Missouri Cellular is the B channel block licensee in cellular radiotelephone service market 510 (Missouri 7 - Saline RSA). On August 29, 1996, Mid-Missouri Cellular filed an application for Use on Review with the City Clerk of Lexington to construct a 160-foot triangular steel tower with surmounted appurtenances and associated equipment shed on a lot located on Lafayette Street. On September 24, 1996, following a Planning and Zoning Commission hearing of which local residents were given notice, the City Council of Lexington approved the Use on Review permit. 3. On September 30, 1996, an employee of the State of Missouri's Department of Natural Resources, which is also Missouri's State Historic Preservation Office ("SHPO"), contacted Mid- Missouri Cellular to inquire on the status of the project's review under the National Historic Preservation Act. Because Mid-Missouri Cellular's proposed tower will be constructed pursuant to a federal license, the federal agency issuing the license, i.e., the Commission, is required to comply with section 106 of the NHPA and the Advisory Council on Historic Preservation's ("Council") regulations implementing this Act. Part 800 of the Council's regulations requires the federal agency to work with the SHPO and any other interested parties to identify historic properties and to assess effects of the project upon those historic properties prior to the Commission's approving such facilities. Because the Mid-Missouri Cellular site will be located within the "Old Neighborhoods Historic District of Lafayette County," a district listed on the National Register of Historic Places ("National Register"), section 106 of the NHPA requires the Commission to afford the Council with an opportunity to comment on the effects of the undertaking. 4. The Commission's rules implementing the National Environmental Policy Act cross- reference the NHPA and the Council's regulations and establish licensees' responsibilities in the NHPA process. Specifically, section 1.1307(a)(4) of the Commission's rules requires a licensee to file an environmental assessment for the Commission's review and approval if a licensee's proposed antenna facility "may affect districts, sites, buildings, structures or objects, significant in American history, architecture, archaeology, engineering or culture, that are listed, or are eligible for listing, in the National Register of Historic Places." Thus, the Commission's rules place upon its licensees the responsibility for identifying to the Commission projects that require evaluation by the Council and initially assessing the effects of these projects. In consultation with the SHPO, the licensee shall make a reasonable and good faith effort to identify historic properties that may be affected and gather sufficient information to evaluate the eligibility of these properties for listing in the National Register. In consultation with the SHPO, and taking into consideration the views of interested persons, the licensee shall then assess the effect of its project on the historic properties, seek appropriate ways to mitigate any adverse effect, and obtain the concurrence of the SHPO in its finding. Licensees should conduct this consultation with the SHPO early in the process of planning a new facility, in order to determine initially whether and how a historic place covered by section 1.1307(a)(4) may be affected. 5. Beginning in October 1996, Mid-Missouri Cellular held numerous meetings with staff from the Bureau, the SHPO, and the Council concerning the effects of this tower project on historic properties in Lexington. The tentative conclusions reached in these extensive consultations, including the identification of historic properties in and around the project location in Lexington and an assessment of the tower's potential effects, were then set forth by Mid-Missouri Cellular in a draft environmental assessment document. 6. On March 24, 1997, Mid-Missouri Cellular held a public meeting at an elementary school in Lexington to discuss the project with residents of the local community, after publicizing the meeting through local newspapers. The notices in the newspapers also stated that the draft environmental assessment was available for public review at various locations throughout the city. Approximately 50 to 60 people attended the public meeting, including representatives from the SHPO, the local government, and the local newspaper, and the entire hearing was recorded by a stenographer who prepared a written transcript of the meeting which was subsequently made publicly available. 7. On April 15, 1997, pursuant to the Commission's NEPA rules, Mid-Missouri Cellular filed the final version of the environmental assessment with the Bureau. In its EA, Mid-Missouri Cellular states that the Bureau should authorize the facility at this site because the proposed action will have no adverse environmental impact on the surrounding area, or, in the alternative, any adverse effect will be minimal. It further states that the tower will have little detrimental visual effect on the historic district because it will not have any lights installed, its galvanized steel structure will blend with the background, and appropriate landscaping and protective fencing will further diminish visibility. Mid-Missouri Cellular's EA also argues that the "existence of many alterations in the Lexington District, as well as the visibility of utility poles and other visual intrusions, including a water tower, in and around the Historic District, mitigates any adverse impact a tower may present." Finally, Mid-Missouri Cellular defends its proposal to remove four vacant houses located on the lot, even though the construction of the tower only requires that two of the houses be removed. Specifically, Mid-Missouri Cellular explains that "the properties [were] on the verge of being condemned by the city of Lexington, and that neighbors have complained because the city has not proceeded expeditiously with the condemnation process." 8. On April 25, 1997, the Bureau issued a public notice accepting the application for filing. In response to this notice, the Bureau received informal letters from seven parties opposing Mid- Missouri Cellular's application. In one of these letters, the Deputy State Historic Preservation Officer of the State of Missouri requests the Commission to withhold granting Mid-Missouri Cellular's application until certain issues are satisfactorily addressed. Specifically, the SHPO petition disagrees with the EA's conclusion that the proposed action will have no adverse effect on the historic character of the Old Neighborhoods Historic District, and argues that Mid-Missouri Cellular has not suggested any ways to reduce or mitigate the adverse effects that its tower project will cause. In particular, the SHPO petition states that Mid-Missouri Cellular failed to explore all possible alternatives to its project, takes issue with the adequacy of the notice that Mid-Missouri Cellular provided to local residents, and objects to Mid-Missouri Cellular's plan to destroy the four vacant houses without adequate documentation. Another letter, filed by several residents of Lexington representing an "Ad Hoc Committee Opposing Tower Location," similarly objects to construction of a tower on the proposed site and objects to Mid-Missouri Cellular's EA and the adequacy of its notice to citizens. The Ad Hoc Committee petition includes a separate letter from Charles Sands which criticizes Mid- Missouri Cellular's EA as "poorly prepared" for detailing no historic research on the properties which it proposes to demolish, color photographs showing the area surrounding the proposed site, copies of identical letters sent by the Ad Hoc Committee to United States Representative Ike Skelton and to State Senator James Mathewson, and "petitions" opposing the tower signed by three categories of individuals. Finally, five individual residents of Lexington sent letters expressing their concerns about having Mid-Missouri Cellular's tower constructed at the proposed location. 9. The Commission also received four letters from residents who were in favor of the project. These residents generally state that construction of the tower will provide needed cellular service and benefit the community economically. They further argue that the vacant homes that Mid-Missouri Cellular proposes to destroy are dilapidated and not worth preserving. 10. On June 16, 1997, Mid-Missouri Cellular filed a consolidated opposition to all the letters received against its application. In its opposition, Mid-Missouri Cellular again explains the need for the additional transmitter facility to provide coverage in the city of Lexington, explains its reasons for and criteria used in selecting the subject site as the best location for providing service, and describes the steps that it took to obtain the approval of the local zoning authorities and to engage in the consultation process required under the NHPA, including its effort to ensure the public's participation. Mid-Missouri Cellular's opposition also introduces additional evidence that the visual effect of its proposed project on the historic district will be minimal. Furthermore, in response to objections to its plan to demolish the vacant houses on the lot, Mid-Missouri Cellular states that, as an alternative to demolition, it is willing to offer those vacant houses on the lot which are not directly located where the tower will be placed to either the SHPO or the public at large to remove and/or restore as appropriate, once Mid-Missouri Cellular is in legal possession of the property. Replies to Mid-Missouri Cellular's opposition were filed by the Ad Hoc Committee and the SHPO. 11. After the thirty-day public notice period and the pleading cycle ended on its application, Mid-Missouri Cellular continued to hold consultations with both the SHPO and the Council in order to address any new or outstanding issues that were raised by the various filings which specifically concerned effects of the project on historic properties. These discussions, held pursuant to section 106 of the NHPA, resulted in an agreement that Mid-Missouri Cellular, as a part of its project plans, will take certain measures geared to protect historic properties in Lexington. For example, Mid- Missouri Cellular is required to assist the SHPO in redefining the boundaries of the Old Neighborhoods Historic District in light of the deteriorated conditions that exist in the historic district today; document the four vacant houses on the subject lots to assist the SHPO in recording these structures that once contributed to the character of the historic district; install appropriate landscaping or screening to lessen the visual intrusiveness of the project; and conduct a workshop for the residents of Lexington on issues of historic preservation. Pursuant to the NHPA and the Council's regulations, these commitments were documented and presented to the Bureau as the MOA. The MOA became binding upon its execution by the Bureau, the SHPO, the Council, Mid-Missouri Cellular, and the City of Lexington on January 30, 1998. III. DISCUSSION 12. Section 1.1313 of the Commission's NEPA rules states that "objections based on environmental considerations shall be filed as petitions to deny." Under section 309(d) of the Communications Act of 1934, as amended ("the Act"), a party filing a petition to deny an application must make specific allegations of fact sufficient to show that the petitioner is a party in interest and that a grant of the application would be prima facie inconsistent with the public interest, convenience, and necessity. Allegations that consist of ultimate, conclusory facts, or mere general allegations on information and belief, are not sufficient. The Commission bases its threshold determination on an evaluation of the petition and supporting affidavits. Once the Commission determines that the petitioner has made a prima facie case under section 309(d)(1) of the Act, the Commission must determine whether the petitioner has presented a substantial and material question of fact as to issues upon which relief may be granted. If no such question is raised, the Commission will deny the petition and grant the application if it otherwise serves the public interest, convenience, and necessity. 13. Based on all the pleadings and supporting materials before us, we find that the petitioners have failed to raise substantial and material questions of fact as to issues upon which the Bureau may grant relief. Accordingly, under section 309(d)(2) of the Act, we will deny all the petitions filed in this proceeding. We find that the public interest, convenience and necessity is served by authorizing Mid-Missouri Cellular to provide the needed coverage of cellular service in the Lexington area. 14. Petitioners' objections to Mid-Missouri Cellular's application fall into three categories. First, several petitions argue that Mid-Missouri Cellular did not provide adequate public notice of its construction plans. For example, the SHPO states that while Mid-Missouri Cellular may have complied with the letter of the City's ordinance requiring notification to all residents living within 150 feet of the site, Mid-Missouri Cellular did not meet "the spirit of the law [by not] informing citizens of upcoming local actions." The Ad Hoc Committee similarly alleges that the newspaper notice announcing the project concealed relevant facts and thus that "principles of common law have been violated, as well as the stated intent of the Comprehensive Development Plan for the community." Teresa Maki also argues that there was no early opposition to the tower because residents were not informed of Mid-Missouri Cellular's plans. 15. The Council's regulations implementing the NHPA specifically require that the federal agency "shall provide an adequate opportunity for members of the public to receive information and express their views." As discussed above, the Commission's rules devolve this responsibility upon its licensees. We conclude in this case that the efforts of Mid-Missouri Cellular and others have given interested members of the public ample opportunity to participate. Not only did the City of Lexington notify residents within 150 feet of the property of a public hearing on Mid-Missouri Cellular's initial application for Use on Review and publish notice of that hearing in a local newspaper, but Mid-Missouri Cellular took affirmative efforts to make both its draft and final environmental assessments available to residents at various locations, held a public meeting to discuss the draft EA, and informed interested persons that they could file comments on the final EA with the Commission. The success of these efforts is indicated by the number of letters actually filed by residents and others. We note also that no party alleges Mid-Missouri Cellular failed to comply with any specific requirement imposed by the City of Lexington. To the extent any party alleges a violation of state common law, that allegation is beyond the scope of the NHPA and must be addressed by state or local authorities. 16. Second, the petitioners argue that Mid-Missouri Cellular should not construct its tower at the subject location because it is in a residential neighborhood. The Ad Hoc Committee even provided signed petitions from dozens of property owners, residents and nonresidents of Lexington, objecting to the proposed location of the tower. The petitioners' concerns, however, are misdirected. The fact that the tower is to be constructed in a residential neighborhood is not a relevant consideration in this case under the NHPA or any of the Commission's rules. Rather, it is the sort of factor that is ordinarily considered by local zoning authorities. Unless concerns under the NHPA or NEPA are implicated, we will not second-guess local authorities' decision to permit a structure in a residential neighborhood. 17. Finally, petitioners raise several arguments based on the impact of the project on historic preservation. To some extent, petitioners argue that Mid-Missouri Cellular should not construct the tower simply because it is within a historic district which is listed in the National Register of Historic Places and within one-quarter mile of the Battle of Lexington Historic Site. More fully, petitioners argue that rather than constructing a tower that will allegedly be visually out of character with the historic district, Mid-Missouri Cellular should have considered alternatives such as constructing two shorter towers, locating its facility on a water tower, or building a tower adjacent to a golf course. Petitioners also claim that Mid-Missouri Cellular should not tear down the four vacant houses on the site, or should better research and document these properties before doing so. 18. We have carefully examined all of the petitioners' concerns relating to the potential effects of the project upon historic resources in Lexington, and we conclude that the project, as conditioned, will have no adverse effect within the meaning of the NHPA because any negative effects from this project will be mitigated by Mid-Missouri Cellular through measures that have been approved by the SHPO and the Council -- the state and federal agencies with the statutory expertise over these historic issues. As mandated by the NHPA, the Council's regulations and section 1.1307(a)(4) of the Commission's rules, Mid-Missouri Cellular, since October 1996, has worked closely with the SHPO and the Council to assess the potential effects of this tower project upon the historic properties in Lexington. During the course of these extensive consultations, Mid-Missouri Cellular filed its EA with the Commission, and the SHPO was one of the petitioners to file a timely objection. As indicated above, the SHPO urged the Commission to delay granting Mid-Missouri Cellular's application until certain issues were adequately addressed. Since the time the EA and various objections were filed, the SHPO, the Council and Mid-Missouri Cellular continued to engage in the section 106 consultations, and these parties have now agreed upon certain measures for mitigating any potential adverse effects that may result from this project. These measures have been memorialized in the MOA executed by these parties, the terms of which will bind Mid-Missouri Cellular in carrying out the construction of the tower project. Under the MOA, the Bureau shall ensure that Mid-Missouri Cellular will carry out its obligations under the MOA. 19. By signing the MOA, the SHPO and the Council indicate that they believe the historic preservation issues raised by the various petitions have been fully addressed. Our own examination of the record reveals nothing that would cause us to question the conclusions reached by these expert agencies. Specifically, regarding the petitioners' concerns that adequate alternative locations or options for providing the needed cellular coverage were not explored, we find that Mid-Missouri Cellular has in fact considered all feasible alternatives, including other locations and means. The record fully substantiates Mid-Missouri Cellular's efforts to seek other sites, and we find that its reasons for dismissing them as unworkable for this project are based on legitimate legal, technological, or economic concerns. We also conclude that the demolition of the four structures, which the city has condemned, is appropriate in order to carry out this project, at least in the context of Mid-Missouri Cellular's commitments in the MOA to assist in documenting and recording these structures. We also take note of computer-generated evidence introduced by Mid-Missouri Cellular that the adverse visual impact of this tower will be relatively small. Accordingly, in light of the measures to mitigate any negative effects agreed to in the MOA, we reject the arguments raised by the petitioners in opposition to Mid-Missouri Cellular's application. We grant the Commission's authorization to Mid-Missouri Cellular to provide cellular radiotelephone service from this site, subject to Mid-Missouri Cellular's compliance with the MOA. IV. CONCLUSION AND ORDERING CLAUSES 20. We have fully considered all of the issues raised by the various petitions, and we conclude that granting Mid-Missouri Cellular's application for authorization will serve the public interest, convenience, and necessity. Accordingly, IT IS ORDERED, pursuant to sections 4(i) and 309(a) of the Communications Act of 1934, as amended, 47 U.S.C.  4(i), 309(a), section 106 of the National Historic Preservation Act of 1966, 16 U.S.C.  470f, sections 1.1308 and 1.1312 of the Commission's rules, 47 C.F.R.  1.1308, 1.1312, and part 800 of the regulations of the Advisory Council on Historic Preservation, 36 C.F.R.  800.1-800.15, that the Application for Mobile Radio Service Authorization filed by Missouri RSA No. 7 Limited Partnership, doing business as Mid-Missouri Cellular, IS HEREBY GRANTED, subject to its compliance with the Memorandum of Agreement discussed herein. 21. IT IS FURTHER ORDERED, pursuant to section 309(d)(2) of the Communications Act of 1934, as amended, 47 U.S.C.  309(d)(2), that the petitions to deny the application filed by the State of Missouri Department of Natural Resources, Division of State Parks, the Ad Hoc Committee Opposing Tower Location, John Maki, Teresa Maki, Katherine VanAmburg, Shirley Childs and Mary Ault ARE HEREBY DENIED. 22. This action is taken pursuant to delegated authority under section 0.331 of the Commission's rules, 47 C.F.R.  0.331. FEDERAL COMMUNICATIONS COMMISSION Steven E. Weingarten Chief, Commercial Wireless Division Wireless Telecommunications Bureau