Council’s Cell Conundrum

I talked about the two cell towers coming before council in A Packed Agenda. The Plan Commission voted unanimously to forward a negative recommendation on both towers.

The village council, however, is damned if they do, and damned if they don’t, and really has no choice.

Many residents spoke gracefully and humorously to the topic. Resident Dave Brown said hiding a cell tower in a park works as well as hiding a bus in council chambers-not at all. Every resident who spoke did so asking for their parks to be kept free of cell towers of any kind for any reason.

The problem is, council can’t simply ban them because it is outside of their jurisdiction to prohibit the Park District from entering into a lease to do exactly that.

Commissioner Neustadt stated the obvious harshly but accurately, and most agreed in their own way. Tully made the existence of a legal opinion memo known, and Marge Earl, an early watcher of this issue, asked for clarification of what the memo said, and where it came from. In a lame bit of would-be sophistry, Sandack insisted that this so-called secret memo, concerning a public issue, involving two public bodies, at a public meeting no less, could not and would not be revealed, neither who had written it, or what it said. What he was selling, no one was buying.

Obviously, our tiny rabble residents brains would explode or something had we found that this memo, plainly written by Village Attorney Enza Petrarca or one of her two legal staffers, all public employees, plainly stated the obvious: state law trumps local ordinance, even if you are Home Rule. If it said anything past that, like the PD could hamstring the village on water detention areas in parks if they didn’t cooperate, I could see why they would want it kept quiet. But the secret memo doesn’t have anything to do with the items covered under allowable executive session secrecy, and it does impact a public vote, and it was brought up in a public meeting as setting the parameters of what council could and could not consider, so it should state the legal obvious-so let’s see some of that transparency guys. You’ve even had time to change it so it doesn’t say anything potentially loony.

One resident, Mo Mathey, said, among some other great things, the Park District was “money blind”. He is probably right. T-Mobile could just as easy have done a deal with Willis Johnson and skipped the Hummer Park flagpole, but why give up $20K+ a year? And even I missed that the Gilbert Park set-up was pre-designed so another cell transmitter building and antennae array (on the same pole) could be sold off and installed.

This was a brutal meeting for Tom Dabareiner, Director of Planning and Community development. The two cell towers, the IHDA bond cap for housing. The easy one was a guy with a non-conforming pool who wanted to rebuild it as a non-conforming pool. Like I said, for TD, that was the easy one.

One thing that kept bugging me was, and I forget who it was, a council member saying these are Park District lands; they own them (I don’t want to think it was Tully, but it was Tully). Technically I guess so, but what the residents attending last night were saying is; no, these are public lands, our lands. We paid for them so we could have parks, forests, open spaces, playing fields, and we don’t want our PD to sell us out. Public parks to me means maintained at the public expense and under public control for the benefit of the public. It’s our Park District, not someone else’s, and that’s why so many were out to say so.

Art Jaros was at the meeting along with Dan Cermak. Jaros is the best known PD Commissioner, partly because he makes himself available to residents, who usually seem to end up not liking what he says. Say what you will; Art may be guilty of brutal honesty over artful deceit, but at least he is a public elected official that is out there. I could not even tell you the name of any other PD board member except Bob Gelwicks, and I would not know if he was standing next to me. And I’m going to try and attend Thursday night’s PD broard meeting, so they can give me deserved crap about that should they so choose.

One of the biggest problems citizens face when opposing any government actions is timely information. The cell tower deal was months and months in the works before it had a bright light shone on it. By then, by now, it is too late unless the PD changes it’s collective mind, it’s heart if you will. The opposition to this was not up to speed in time to derail it. The deal was done as it came before the PD board, and by then it was probably past effecting. Had the PD board asked residents if they were in favor of such leasing and income, and discussed the pro and con up front, who knows if anything would have changed, but the early disclosure would have been good. Residents want to know what’s coming down the road; they don’t want to have village applied blinders on. We’re all big boys and girls and we deal with reality on a daily basis. Give us the low down and we’ll give you our thoughts, and it will be a civil give and take.

This was another meeting that felt like the council had already had a meeting about it and decided what they were going to do. Village staff and PD staff probably met and hashed things out when the Plan Commission did the opposite thing staff wanted. Staff did the same thing this time they’ve done before: ignore the PC here’s what we recommend.

Next week, amongst much explanation and dancing, council will approve both towers. They really have no option. Maybe Willis Johnson could put a tower up just north of the tracks across from Pepperidge Farms, but that just slows everything down, and council will want this done and gone ASAP.

PS- And yet another request for waiving a one week waiting period so the village could do another yearly contract for health plan consultant and accounting services. Staff didn’t know this was coming for, oh, say, a year? Take off the blinders and look down the road to see what’s coming, and get these things done on time so council is not constantly sidestepping their own policy on timetables. It has to be driving Sandack batty that this keeps happening; waiving one-week waiting periods was a Krajewski thing that limited public participation, something Ron wanted to change.

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16 Responses to “Council’s Cell Conundrum”

  1. John Schofield Says:

    Without public discussion of the Village attorney’s written legal opinion, and also of any response that resident attorney’s might offer, I’m withholding judgment on what the jurisdictional line is between Park District powers and Village zoning requirements.

    It should be noted that nothing in the Illinois Freedom of Information or Public Meetings Acts REQUIRES the Village Council to keep the Village attorney’s written legal opinion secret. They certainly have the ability to release it for public view.

  2. markthoman Says:

    70 ILCS 1205/8‑11 seems pretty unambiguous. I can find nothing that conflicts with or may supersede it.

  3. Lucy Lloyd Says:

    I live near Gilbert Park, so I have noted with interest the discussion concerning the proposed- now approved- cell tower and related structures. I disagree with your caption, Mark, and would suggest instead tossing the Gilbert Park structure and keeping the Hummer Park one.

    As a reader on DGReport noted, there are multiple reasons why Gilbert is a bad idea, and there is at least one other place the tower could be placed that would keep it from being as obtrusive as it appears it will be.

    I’m tired of what I perceive to be the Park District Board’s disregard for the neighbors and nearby residents of these parks, and of the lack of respect the Board appears to have for the desires of the residents of the district. I don’t believe that any board should make its decisions based solely on ‘NIMBY’s’, but for whom, if not for us, are these parks intended?

  4. Martin Tully Says:

    Mark:

    There is nothing mysterious, much less sinister or improper, with maintaining the confidential status of a document that is plainly subject to the attorney-client communication privilege and/or attorney work product doctrine. Its fairly standard, actually, in any context, public or private. Like any other “client,” the Council is entitled to the frank legal opinions and mental impressions of its legal counsel. You can imagine the chilling effect if every proper bit of legal advice on every subject were publicly available – including to potentially adverse parties! Again, this is neither new nor unique to DG.

    That said, the underlying, applicable legal authorities are publicly available to anyone who wants to do the research and reach their own conclusions. Gosh, I think much of it was previously posted at DG Report at one point or another. The guiding legal principles here are hardly “secret.” (BTW, the other Oliver Stone-ish implications are of your post are pure fantasy. Sorry to disappoint, but we’re just not that interesting.)

    Oh, I may have said that the Park District owns the dirt at Hummer and Gilbert Parks because they, as an entity, hold legal title to and have rights of possession to those parcels. I never said that the PD and its elected board aren’t ultimately accountable to their constituents for what they choose to do with the property they own and possess. But that’s another meeting.

    Unofficially yours,

    Martin

  5. markthoman Says:

    I don’t beleive I used the word sinister or improper. Let me check that….no, no “sinister”. Lame sophistry, yep said that. It is, I beleive, improper to keep the memo secret.

    Contrary to what you would have me and others beleive, it is far from clear whether the attorney-client privilege applies to municipal governments in this context, much less under what circumstances the privilege applies at all.

    Wigmore originally defined attorney client privilege. The two underlying principals of confidentiality are the privilege of loyalty to the client and the privilege of full disclosure between counsel and client. Neither of these underlying principals are fatally compromised by disclosure in the interest of open government.

    I maintain the village attorney advised council that state statute trumps muni code, mainly because it does. I have maintained ILCS statutes, unless specifically noted, trump muni code for a long time, as you are well aware. There is no ILCS Statute I can find (perhaps you can point me) that lays down guidelines, rules, regulations on what can rightly be considered attorney/client confidentiality in this situation.

    The courts have made “assumptions” that remain vague. Those same courts are unwilling to provide such broad definition as you posit, mainly due to it’s inherent incompatibility with open government. There are no tracts or dissertations I can find that provide a basis for recognizing a municipal attorney/client privilege. Rule 501, which I’m sure you know far better than I, neither specifically allows for the privilege in the municipal setting nor disallows it. the courts do, however, seem to be narrowing the field each time they revisit case law.

    Reed v. Baxter, 134 F.3d at 357 clearly states “The governmental privilege stands squarely in conflict with the strong public interest in open and honest government.”, which is my original point. A local government dedicated to being open, transparent, and accountable, will also dedicate itself to being honest despite the warts and wrinkles that honesty may reveal. Also, I beleive council and the village attorney are mistaking government privilege with government attorney/client privilege.

    As the most visibly engaged of council members, your presence and expertise is always welcome, appreciated, and valued. Should you ever wish, I would be happy to post up any comments you write unedited (except for an asked for page break) on any topic you want to write about, as your comments and observations tend to be pretty thoughtful. Thank you for your input.

  6. markthoman Says:

    “I disagree with your caption, Mark, and would suggest instead tossing the Gilbert Park structure and keeping the Hummer Park one.”

    Okay.

    I’m not vested in this issue about the towers. Others are.

    I can’t find where 70 ILCS 1205/8‑11 necessarily trumps muni zoning laws, laws that are a bedrock power of municipalities. An argument could be made that the PD must follow muni zoning laws, just as they must follow the liquor laws, etc. OTOH, it is not clear that the PD is required by law to get approval of the towers from the village.

    Maybe that clarity is not what I thought.

    There’s also the matter of radiation that local attorney Theresa Beran Kulat brings up, on pages 29-41 of the background info on this .

  7. Wheels Says:

    I read the post and it sounds like Mr. Tully is agreeing with what you say but it reads like he is disagreeing. Does he know you are agreeing with him on the voting part?

  8. Martin Tully Says:

    Yes, Wheels, I did, with respect to the voting part. I was only addressing what I perceived as the unfair implications of his “secret memo” comments. But I subsequently ran into Mark and we discussed it further, so I won’t devote any more bytes to the point. Nuff said.

  9. Art Jaros Says:

    Mark’s article states: “One thing that kept bugging me was, and I forget who it was, a council member saying these are Park District lands; they own them … . Technically I guess so, but what the residents attending last night were saying is; no, these are public lands, our lands. We paid for them so we could have parks, forests, open spaces, playing fields, and we don’t want our PD to sell us out. Public parks to me means maintained at the public expense and under public control for the benefit of the public. It’s our Park District, not someone else’s, and that’s why so many were out to say so.”

    I agree with Mark’s “technically” comment in that the residents elected to the Park Board essentially occupy the positions of trustees over the public’s property. But the notion that the relatively small and dwindling number of protesting residents may arrogate to themselves a claim to sole and/or superior ownership of the parks just by showing up and saying their piece of sense or nonsense or something in between is UTTER NONSENSE. Each resident has an equitable claim to about 1/50000 of the beneficial ownership of each park property and they’ve entrusted non-referendum decision making to their five elected fellow residents who regularly receive and then endeavor to properly evaluate input received during visitor statements and by other means. Mark makes it sound as if the handful of protesting residents has some superior right of ownership. That’s simply wrong–way wrong. And the Park Board, neither before nor at any time after its August 2007 decision to approve the T-Mobile transactions, ever had “many” out to say “no.” We had “Mo” Mathey come out and twice attack the motives of the five of us, his fellow residents devoting volunteer service as members of the Park Board. That was counterproductive. And, his objections to one more pole (unlighted unlike all the other existing poles) in the face of his living next to one of the world’s busiest rail lines–hardly an idyllic aesthetic setting–and his house illuminated by the bright night baseball field lighting at Gilbert Park rang totally hollow to reasonably minded people.

    Moreover, “Mo” Mathey should have had more common sense than to belatedly threaten his five fellow residents on the Park Board with the involvement of his lawyer neighbors.

    The sentence: “Public parks to me means maintained at the public expense” is likewise not worthy of credence. The Park District Code provides that public parks can be paid for in a variety of ways. We can use profits from concession stands to help pay for public parks. We can charge golfers for using the public Golf Course–one massive public park–user fees for the privilege of using those public lands and devote “profits” to other park district functions. We can charge for the use of the Rec Center fitness center. And, the Park District Code of the State of Illinois allows us to charge for allowing utility use of our parks. So, “public parks” does not automatically equate to “being maintained [100%] at the public expense.” A person can hold that preference (i.e., that public parks be maintained 100% at public (read: property tax taxpayer) expense) but what weight does such an opinion or preference carry? It’s the same sort of weak position that some T-Mobile opponents tried unsuccessfully to put to the Village Council, namely that “Special Use” equates to “Special Need.” That fallacious argument was rightly and promptly shot down by one or more clear thinking councilmen.

  10. Art Jaros Says:

    Lucy Lloyd posts above: “I’m tired of what I perceive to be the Park District Board’s disregard for the neighbors and nearby residents of these parks, and of the lack of respect the Board appears to have for the desires of the residents of the district. I don’t believe that any board should make its decisions based solely on ‘NIMBY’s’, but for whom, if not for us, are these parks intended?”

    Well, maybe I’m equally tired of the seemingly incessant attacks on me (and by at least one protestor against my character) and on my Board colleagues by a handful of vocal park neighbors who regard public parks as a tax-free extension of their own backyards and their own private, untaxed property. The truth is that D.G. Park Board hasn’t disregarded the neighbors and nearby residents. I disagree with the extreme and unreasonable positions taken by some of the neighbors. I’ve supported park neighbors when their positions are thoughtful and reasonable. It is utterly presumptuous for persons like Lucy to suggest that she speaks for the “desires of the residents of the district” whereas I, just as much a resident and my four fellow residents on the Board, do not. From whence does THAT notion of Lucy’s come? How does she know that she speaks for all or even a majority of the residents of the district? The simple fact is that a single flagpole and a hidden equipment shed at Hummer and one more pole–an unlighted one at that unlike all of the others–and one or two sheds right next to an long-existing equipment cabinet in an out-of-the-way corner at Gilbert Park do not impact park use and have no material impact on park aesthetics. Elaine Johnson posts to the same effect at dgreport.com. My intuition is that most folks would gladly accept $500,000 or more over twenty years in exchange for allowing a flagpole in their front or backyard. Businesses do it, churches do it, schools do it, cities, town and villages do it, but, my-oh-my, if a Park District does it, that’s some sort of mortal offense. Truth be told, the opponents never made a reasoned case against the T-Mobile transactions, either before or after the Park Board’s televised deliberation and decision-making. Proposing to place a flagpole–revenue generating or not– in the middle of the Belmont Prarie Nature Preserve is one thing; putting a flagpole next to a pavilion at a developed park to replace a rusty old metal flagpole and generate revenue at the same time is quite another. The oppponents failed to differentiate between nature preserves and ordinary, developed public parks. And they never explained why storm water detention and water towers in public parks are O.K. with them and, by comparison, far less obtrusive cell towers are not. Their opinions, which they’re entitled to hold and express, deserved to have been rejected and were. Moreover, it was totally bizarre to have criticisms of the Park Board made to the Village Council (including one last night) and not to the Park Board itself. That was really courageous.

  11. markthoman Says:

    I think I see where your position is. I understand why people were out in force; I even understand why they were at VC, thinking (wrongly) that it was their court of appeals.

    Public parks to me means maintained at the public expense. As opposed to, we lease these grounds to McDonald’s Corp to build a big new drive through McD’s, or we enter into an agreement with Fort Howard to log at Lyman Woods. Instead, it is fees and taxes from the public that feed the coffers that keep out public parks public.

    FWIW I’ve always had problems with “naming rights” to fields, too. Comisky it will always be. Wrigley it will always be. Candlestick, Mile High, The Stadium, Rosemont, etc. I can’t call these by their privately purchased names. Character flaw I guess.

  12. markthoman Says:

    Schools doing it seems to be okay. I asked several people who objected to the parks and they more or less shrugged and said who cares…

  13. Art Jaros Says:

    Mark writes: “Public parks to me means maintained at the public expense. As opposed to, we lease these grounds to McDonald’s Corp to build a big new drive through McD’s, or we enter into an agreement with Fort Howard to log at Lyman Woods. Instead, it is fees and taxes from the public that feed the coffers that keep out public parks public.”

    Logging at Lyman Woods is contrary to the purpose of Lyman Woods unless it be very limited/selective and consistent with the management plan in which case I don’t understand why you would be opposed to receiving revenues from the sale of the logs.

    What I think you’re overlooking is the middle ground situation between 100% taxpayer funding and complete conversion of public lands to private commercial purposes (your McDonald’s example).

    And, what we’re talking about with T-Mobile is just such a middle ground case: the continued functioning of public parks as public parks is completely unimpaired and there is no material impairment to the existing aeshetics of the parks in question. Yet we now generate non-taxpayer revenues from allowing an “ancillary” utility use of the parks as expressly contemplated by state law. Again, I don’t understand the genesis of your notion that public parks must be maintained 100% at taxpayer cost in order to qualify as public parks. That seems to me to be analogous to the confusion between “Special Use” and “Special Needs” argued to and correctly rejected by the VC. Does a public park become any less of a public park because there is a water main, whether owned by a municipality or a private water utility, running underground or a water tower sitting on a corner of the park, whether owned by a municipality or a private water utility? Or, does a public park lose that status because telephone poles and wires are allowed to run on the perimeter of the park? What am I missing, Mark?

  14. DGDood Says:

    Mr. Jaros, even I get MT is saying cell towers don’t matter. You gotta quit arguing with people that agree with you. That’s what your missing, unless I’m missing something.

  15. Marge Says:

    Water towers and stormwater detention are life/safety installments in my eyes, Art. A cell phone tower is not. And the fact that a cell tower is “less obtrusive” in your opinion means you must think it is in fact somewhat obtrusive to begin with. Would you still be supporting something so obtrusive if there were not money attached? Because I know you don’t like the water tower or the stormwater detention. And yes, the cell tower may be a pole you can hang a flag on, but hardly comparable to the current flag pole in the specs.

    For the record, I am near Hummer Park, but it is NOT in my backyard. In fact it is well over 250′ away from me, as I never received one notice that was mailed. However, you are right in the fact that I do think of it like a backyard of sorts, yours, mine, ours, everyone’s. And I don’t want a tower in your/my/anyone’s residential back yard. Nothing personal…

  16. momathy Says:

    “Moreover, “Mo” Mathey should have had more common sense than to belatedly threaten his five fellow residents on the Park Board with the involvement of his lawyer neighbors.”

    Actually, I have no appetite to threaten anyone. My “lawyer” neighbors came on their own and with very little prodding. That in itself should be something to ponder. Instead i would like to challenge Mr. Jaros and anyone else to go to the park. Come, sit, let your mind be silent and free of legal and financial arguments. Do it for 5 minutes if you can. Then ask yourself in silence, “what have i really done ?” And wait for the answer. $500,000 can look like a lot of “free” money but there is also a price. I can’t convince you what that price is. That is something you will have to discover for yourself over time. Best wishes to all our commissioners and voters, including Mr. Jaros, for their future service and wise decision making. I wish you peace. Moe Mathy


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