WASHINGTON-It is becoming quite obvious that the key word on antenna-siting disputes is cooperation. In two situations last week, cooperation led to successful results for three wireless companies.
In Fairfax County, Va., a circuit court judge told Bell Atlantic Mobile and AT&T Wireless Services Inc. that cooperating with the Virginia Department of Transportation meant it did not have to go through the Fairfax County permit process.
In Harpers Ferry, W.Va., U.S. Cellular, by cooperating with local officials and local citizens, has agreed to place an antenna on a water tower rather than on its original site-a civil war battlefield.
Fairfax County, Va.
BAM and AT&T have built and operated monopoles that are used to site both cellular antennas and traffic cameras. They did so without going through the normal Fairfax County permitting process. A year ago, the county sued, saying the placement of the monopoles did not conform to the Fairfax County comprehensive land plan. An attempt at a temporary injunction failed on much the same argument that Chief Judge F. Bruce Bach cited when he ruled in the companies’ favor last Thursday. In short, Fairfax County does not have jurisdiction over state lands, including VDOT right-of-ways.
Bach’s ruling came after nearly three hours of intense oral arguments in which J. Patrick Taves, deputy county attorney for Fairfax County, said “under the theory expounded by [BAM, AT&T and VDOT], VDOT could lease land to [BAM] and AT&T and they could construct a facility that reached all the way to the sky.” This argument was countered by Paul Kiernan, BAM outside counsel, who said that if the county could regulate state government property that would be the same as saying “Arlington County could re-zone the Pentagon for residential use.”
VDOT joined the case, arguing that the monopoles, although built and maintained by the wireless companies, were actually part of an Intelligent Transportation System and therefore were not commercial but shared. Bach agreed, saying he assumed that VDOT was acting under proper authority when it entered into the leases with BAM and AT&T.
It is unclear whether Fairfax County will appeal Bach’s ruling to the Virginia Supreme Court, but many court observers expect it to do so. The Fairfax County Board of Supervisors is expected to meet in executive session on Sept. 28 to decide its next move. Such a case would have an impact on many other cases that are percolating in Virginia and around the country about land-use policy. Indeed, there were at least two representatives from other wireless companies in attendance at court, who are building or have built monopoles on VDOT land using the same theory as BAM and AT&T.
Harpers Ferry, W.Va.
U.S. Cellular is expected, in the next four or five months, to begin construction on a city-owned water tank rather than on the famous schoolhouse battlefield in Harpers Ferry. The schoolhouse battlefield is private land on which U.S. Cellular bought an acre last year with the intention of building a monopole.
The agreement reached on Sept. 15 requires U.S. Cellular to give up the permit it received from the Jefferson County (W.Va.) Planning Commission to build on the schoolhouse battlefield site. Additionally, U.S. Cellular agreed not to sell the civil war battlefield site for at least a year. Some land activists had urged the town to require U.S. Cellular to put an easement on the land that would restrict future uses of the land so as to maintain its character. U.S. Cellular voluntarily agreed to place such deed restrictions on the land but Harpers Ferry did not require it.
While the original location would have been “technically superior” to the water tank site, “it would have been a long and contentious battle,” said Mark Gartley, project manager for U.S. Cellular. The company now will complete an environmental assessment before construction and operation can begin. “A major hurdle has been crawled over. Everyone seemed pleased with the result,” Gartley added.
The compromise pleased local resident and siting activist Paul Rosa. “Practically speaking, we have gone from a 260-foot tower with a strobe light on a civil war battlefield [to a water tower]. It took what would have had major visual impacts to something that works quite well. The community worked with [U.S. Cellular] while still exerting its rights,” Rosa said.
