How Michigan is slowly taking away power from local governments with 'political move'

The worries that swamped all else at a recent Troy City Council meeting boiled down to this: Who has the power and why isn’t it us?

In a council chamber just returned to use after a year of online meetings via Zoom because of the COVID-19 pandemic, the mayor had to warn “No clapping” when speakers raised two sizzling issues: One may soon bother countless Americans; the other already does.

First, residents complained that telecom giant Verizon chose their leafy neighborhood in Troy for installing a 40-foot pole, topped by newfangled equipment that will beam the latest version of cellphone service, called 5G — short for fifth generation. Americans want high-speed communication everywhere, so these towers will need to be almost everywhere.

The residents said they weren’t opposed to 5G, just upset about having this pole go up close to their homes, on a cul de sac that they say is a gathering spot for ice cream socials and kids’ events. They said the pole will be ugly, and that radiation from it may endanger those who spend time near it. The city’s official response, in a nutshell? "Sorry, but we’re powerless to help you. State law lets Verizon do that.”

A second group spoke up, angry that the Michigan Department of Transportation widened I-75 through Troy, adding to traffic noise reaching their homes. What especially irked these folks was that MDOT protected some subdivisions with towering new sound walls, yet left them without the walls. In many stretches, people said, a new wall went up on one side of I-75 but not on their side, so the freeway din bounced off the new wall and streamed back to them. The city’s official reply, in brief? Same as before, blame Lansing. Troy Mayor Ethan Baker said: “Listening to all of you, I’ve never been more struck by (seeing) the state take away more and more power from cities.”

And this fall, state lawmakers will consider other bills that would reduce local powers further. If they pass, opponents say that scenarios like trucks loaded with gravel could start rumbling by your home and there would be little that local leaders could do; and the houses around you could suddenly become Airbnb rental properties, with your city, village or township largely powerless to impose rules or taxes.

Local leaders have long lacked much say about state and federal highway standards. When it comes to deciding which areas get sound walls, that’s up to state highway engineers, according to MDOT. Although Michigan’s policy on sound walls is sent to federal highway administrators for approval, “it’s really MDOT policy that we apply consistently across the whole state of Michigan,” a spokesman for MDOT said.

In contrast, local governments had been accustomed to maintaining significant control over private companies seeking access to public land. That changed in 2018. State lawmakers passed the Small Cell bill, which gave the telecom giants, including Verizon, almost unfettered access to public rights of way for just $20 per year. A spokesman for Verizon at the company’s headquarters in New Jersey declined to comment on the Troy neighborhood’s situation and whether it might be possible to move the new pole, beyond saying: “Our engineers analyze our current network usage and data trends to determine placement for small cells, including 5G Ultra Wideband technology.”

As for health concerns, the Verizon spokesman cited www.wirelesshealthfacts.com, a website that recounts studies and court rulings absolving cellphones and their networks from causing any health problems. He declined twice to answer how close together the new 5G antennas may need to be in urban areas. Some experts predict they will be required every few hundred feet, said attorney Mike Watza, who led a group of city and township clients — including Troy —  in a group called PROTEC that tried to block Michigan’s 2018 "Small Wireless Communications Facilities Deployment Act."

Michigan's Small Cell law bill “takes away all community authority, foists right-of-way cell towers on unsuspecting neighborhoods and requires nothing back from the wireless industry — no rate control, no buildout requirements, no service standards,” Watza said. A supporting argument for the bill, summarized in an analysis by the state Senate Fiscal Agency, said supporters believed it would put Michigan on the cutting edge of 5G communications by minimizing the cost and expense to industry of introducing the new technology.

At the Troy City Council meeting on Aug. 9, elected leaders promised the residents they’d have city staffers lodge requests with Verizon and MDOT; that they’d seek, respectively, having the site for the 5G pole moved to a nearby commercial area, and having the state build more sound walls. Yet, Troy’s leaders were quick to warn that they probably would get nowhere.

Even if the Troy complaints do get resolved in residents’ favor, Michiganders in countless other areas are sure to encounter new 5G poles being erected and sound walls that aren’t being erected. Right now in Lansing, state lawmakers are considering bills to take away more local powers. That’s a political move called preemption, said Dale Thomson, an associate professor of public policy at the University of Michigan-Dearborn.

Preemption means that the state government passed a law that prevents local governments from passing their own law on the same issue, said Thomson, a specialist in how local government works. In Michigan, “It’s largely Republican leadership that has done this. So that’s contradicting what we think of as Republicans generally favoring local control,” he said.

Still, preemption has become a bipartisan trend. Vote counts in Lansing show that many Democrats signed on to Republican-led initiatives to preempt local government, Thomson said. Big corporations, like Verizon and AT&T, adore preemption “because it means they don’t have to fight every local zoning board and every local city council to get what they want” locally, such as receiving automatic permission to install cell towers on public easements.

Thomson was quick to add that not all preemption is bad. For example, if Michigan lawmakers wanted to keep some maverick township or city from banning COVID-19 vaccinations, they could preempt that. Lately, many state officials in Michigan went the other way on public health, trying to keep school boards from requiring masks and vaccinations. Elsewhere, Republican governors in Florida, Texas and other states took local control away from school boards that tried to follow the advice of health experts, more examples of preemption.

Thompson concluded that “overall, preemption by itself is not a bad thing. Sometimes it’s appropriate” to override local wishes; whether it’s good or bad is “all about whether a given policy or law is pushed by a small minority or whether it’s something that will benefit everyone.”

The Michigan Municipal League, which represents the interests of more than 500 cities and villages, resists preemption because it drains power from their member cities and villages. The trend to use it in Lansing has been “on the uptake for at least the last five years,” said Jennifer Rigterink, a legislative associate with the Municipal League.

Michigan’s historic tradition called Home Rule, which assumed that local governments knew what was best for their communities, “seems to be up for grabs” whenever a special interest group wants special privileges, Rigterink said.

In 2018, the Municipal League saw big telecom and Internet providers pushing what was called the Small Cell bill, which said local governments could not stop them from installing 5G devices on public rights of way — and that the locals would get a mere $20 a year per site. That compares unfavorably to the thousands of dollars per month that big companies pay elsewhere for locating cellphone towers.

The bill “was originally a lot worse” for local governments, Rigterink said. “My colleague worked just a ton of hours and got language in there about historic districts, trying to maintain the integrity of those districts” by keeping out the most conspicuous of the new 5G equipment, she said. But the bill is a prime example of how a state can squash local power.

“People move to a community because they expect a certain quality of life, and then they see one of these poles going in and find out the locally elected officials have their hands tied. The senator who sponsored that bill is no longer in office.

“At least we were able to negotiate some changes,” she said. In contrast, “the Short Term Rental bill ... We haven’t been able to negotiate at all,” Rigterink said. 

The Short Term Rental Bill, House Bill 4722, and its companion bill in the state Senate, SB 446, would allow short-term rentals (up to 30 days) in all residential areas of Michigan, without the need for a special permit. Local governments would still be allowed to regulate some effects of these rentals, such as traffic, noise and advertising, but they could not ban them outright. The bills are strongly supported by Realtors, who often receive a percentage of the leases in return for steering customers to rental units. Many homeowners have testified that the money they get from short-term rentals helped them pay their mortgages and improve their properties.

Another pending example of potential preemption are bills favored by Michigan’s gravel mining industry.

“Local government is already very limited when it comes to regulating gravel and sand mining. This would take away that little bit of oversight we have,” Rigterink said. As usual, there’s another side. Doug Needham, president of the Michigan Aggregates Association — a trade group of gravel producers — told the Free Press in May that the bills should pass because easy access to gravel used for road building is vital to stretching Michigan’s limited road dollars.

Stretching money for roadwork is at the center of the other big issue that residents in Troy raised. Numerous residents voiced their distress about swelling traffic noise from I-75, and about MDOT’s process for deciding who gets a sound wall. Again, city officials said they were hemmed in by state laws and the rules of MDOT. Residents of more than a dozen subdivisions near I-75 said that sound levels at their homes and yards had risen to objectionable levels. The Free Press visited several to experience the whir of traffic in the distance.

“It gets louder every day,” said Jaye Clinton, who stood at the rear of her backyard and pointed out freeway traffic whizzing by. 

“With the pandemic, there still isn’t as much traffic as there’s going to be. This is just going to get worse,” Clinton said. Many of those who complained are much farther than she from the traffic lanes, by as much as a half-mile, yet they also said the sound has swelled that reaches their patios and in bedrooms.

In their home several blocks from the freeway, Rod Pendergraff and his wife, Susan Saxton, opened their living room to a recent meeting of residents, many of whom had complained at the council meeting. Pendergraff pulled a reporter aside to see a picturesque pond and small waterfall beside his patio. When a pump has water bubbling over rocks, the noise from I-75 all but disappears, Pendergraff said. Indoors, though, his home office is in the front of the house with windows facing I-75, “and sometimes I hear the concrete — the cars running on it,” he said.

Many residents questioned whether MDOT’s process for determining the wider freeway’s noise levels was valid. MDOT tested noise levels several years ago, then estimated how much the noise would increase after lanes were added. The decisions on where sound walls should go could be based on faulty, outdated measurements, the residents said.

City council members said they would ask MDOT for new measurements, hoping that more subdivisions would qualify. An MDOT expert was dubious.

“Being that we did a complete study there in 2014 and validated it in 2018, it would be hard for us to justify doing another study in Troy. We’d need something to justify spending that additional money,” said Tom Zurburg, a traffic noise specialist based in Lansing.

“We’re not disagreeing with some of these folks that are saying the noise is loud. We are classifying them as impacted. What we’re saying is, they don’t meet the criteria for a barrier. When we get into the analysis, it doesn’t flesh out that a barrier would meet our criteria,” Zurburg said. He noted that the construction of the nation’s first freeways in the 1950s did not include any sound walls.

“The noise-abatement programs really kicked off in the early ‘70s. MDOT really got going with it in 1975 when we built I-275. So a lot of our freeways were originally built without sound walls,” Zurburg said.

Will sound walls ever be built retroactively for those residents living alongside the oldest urban freeways, and exposed to louder noise than anyone in Troy? Examples are people in homes along I-94 in Detroit and its neighboring suburbs; and others in Warren whose homes overlook I-696. Probably not, MDOT spokesman Rob Morosi said.

“With the limited resources in Michigan for roads, we have more needs than we have resources.” Morosi ruled out retrofitting sound walls on old freeways, although he added a key caveat: When older freeways get rebuilt and widened, the updated engineering can and often does include adding sound walls, he said.

Virtually all of the Troy residents who complained, about the 5G pole as well as the freeway noise, said they worried that their property values would suffer. After visiting several of the subdivisions, where many of the houses sell for between $400,000 and $500,000, the Free Press asked ReMax real estate salesman Doug Shaw, who not only sells homes in the affected areas of Troy, he has lived in one for three decades.

“Since they’ve expanded the freeway, the noise has doubled,” Shaw said.

“Will it have an effect on property values? Right now, we’re in a sellers’ market,” he said, adding: “And right now, people want anything in Troy.”

Contact Bill Laitner: blaitner@freepress.com