In what could become a precedent-setting case, a jury in Harris County, Texas, last week awarded
more than $1 million to a couple who claimed a GTE Wireless tower near their home decreased their property value
and caused them mental anguish.
According to the case filed in 1994, GTE Wireless constructed a 100-foot tower
on property belonging to the city of Bunker Hill Village, Texas, the town where Adrien Pascouet and his wife, Chantal,
live. The parcel of land on which GTE built the tower is adjacent to the Pascouet’s property, and the base of the tower
sits 22 feet from the Pascouet’s backyard, said the lawsuit.
The lawsuit filed by the Pascouets claims GTE erected
the tower in violation of city and state zoning requirements, specifically a 35-foot height limit on towers, a 50-foot
setback requirement and a restriction on commercial activity, said the couple’s attorney, Thomas Sankey of Sankey &
Luck L.L.P.
Joann Riner, a spokeswoman for GTE Wireless, said the tower was recommended by the police chief
and approved by the city. The tower, which was built in September 1994, replaced two smaller towers-one operated by
GTE Wireless and the other housing police transmitters, said Riner. Both towers existed when the Pascouets purchased
their home in 1983, said Riner.
“This property was already a staging area for public works
construction,” said Riner, who noted the company was disappointed with the jury’s decision and would appeal if
necessary. GTE Wireless “is always trying to find collocation opportunities, and that is what we were trying to do
in this case.”
Sankey said only the police transmitter existed prior to the 1994 construction of the GTE
Wireless tower.
In addition, the lawsuit claims the Pascouets lost enjoyment of their home because of lights on the
tower and noise generated by the base station equipment. The Pascouets also claimed their privacy was invaded
because technicians accessing the base station equipment and climbing the tower had a direct line of sight into their
backyard.
“The City of Bunker Hill Village, the owner of the property underlying the GTE cellular tower and
equipment building, has over three acres of property at this location,” said the lawsuit. “There are numerous
other locations on the City of Bunker Hill Village’s property where the tower and equipment building could have been
located so as not to interfere with any resident’s enjoyment of their home.”
GTE’s Riner said the company
tried to address complaints about the tower by building a taller fence around it and replacing and relocating the air
conditioning unit in order to reduce noise.
Sankey said a real-estate appraiser was asked to appraise the property
with the tower and estimate the value of it without the tower. With the tower, the home was appraised at 10 percent less
than it would have been without the tower, said Sankey.
In total, the jury awarded the Pascouets $28,000 for loss of
market value of the property, $720,000 for past and future loss of use and enjoyment of the property, $225,000 for past
and future mental anguish and $230,000 in legal fees.
In addition to monetary damages, the lawsuit also sought a
mandatory injunction requiring GTE to remove the tower. Sankey said a judge must decide that matter within the next
several weeks.
Jeffrey Moerdler, a partner specializing in real estate and telecom at the law firm of Wolf, Block,
Schorr and Solis-Cohen L.L.P., said the wireless industry is receiving mixed signals. On one hand, said Moerdler, the
telecom act of 1996 was supposed to encourage wireless buildout by easing difficulties with local zoning authorities.
On the other hand, a judgment like this could discourage buildout.
“There is a whole host of social issues
involved with balancing the desire of people who want the benefits of these new technologies with their desire not to
live near the equipment that makes the technology possible because it impinges on property values, etc.,” said
Moerdler.
Moerdler said he has heard of cases similar to the Pascouets but is not aware of any that have been
successful.
“It’s important because it is probably the first major case going this way, and it may set a
precedent,” said Moerdler. “But I wouldn’t put much weight on it until we see what happens on
appeal.”
Sankey said the judge plans to rule on the case within 45 days, and in the interim, the Pascouets and
GTE Wireless will make a third attempt to resolve the issue in mediation. The city of Bunker Hill Village originally
was included in the lawsuit, but it settled out of court with the Pascouets last year.
