Agenda - Planning Commission - 02/02/2006

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December 24, 2005 -- Page 3 terms of the original conditional ase permit. After the final heating, the Makdessians could have continued their work at the shop under the new terms of the permit, appealed the case back to the city council, or sought a court order from the state's superior court. "Instead, they chose to vacate the premises." Thus, the city never deprived the Makdessians of any right. Also, although the city may have violated a municipal ordinance when they referred the pending case back to the zoning administrator, the notice, two proceedings, and availability of further appeal were sufficient to correct any defect in procedural due process caused by the error. The lower court's decision was thereby afl.m-ned. see also: Lake Naciraiento Ranch Co. v. County of San Luis Obispo, 841 E2d 872 (1987). see also: Kertey Industries Inc. v. Pima Count,, 785 F.2d 1444 (!986). Permit -- Cellular telephone company seeks to build tower in residential district Claims it is a public utility station Citation: BellSouth Carolina PCS, L.P. v. Henderson Co~mty, Court of Appeals of North Carolina, No. COA05-31 (2005) NORTH CAROLINA (11/15/05) -- BellSouth Carol/ha PCS, L.P. (BellSouth), a provider of two-way telephone communication services to the public, applied for and was issued a permit allowing it to build a cellular telephone tower in a residential district. Subsequently, BellSouth erected the tower. Several county residents appealed the issuance of the permit. On appeal, the Henderson County Zoning Board of Adjustment said that not only was BellSouth not a "public utility" -- the requirement for receiving a permit-- but also its cellular telephone tower was not a "public utility station." Based on these Findings, the board revoked the permit. After a series of motions and appeals by both parties, the court upheld the board's decision. BellSouth appealed. DECISION: Reversed. The court had to determine whether BellSouth, as a wireless telecommuni- cations provider, was a "public entity," and, therefore, entitled to a zoning permit to construct a cellular telephone tower under the Henderson County Zoning Ordinance. In its analysis, the court looked to the ordinance in effect at the time BellSouth applied for the zoning permit to build its tower in a residential district. The ordinance perrcfitted transformer and public utility stations to operate in this type of district, provided that they followed guidelines such as completely enclosing the facility with a wire fence or building at least eight feet high, and planting evergreen buffer strips along the property lines of residentially zoned property. © 2005 Ouinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 133