Agenda - Planning Commission - 06/05/2003

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Page 6--May 10, 2003 Z.B. 444 Communications Towers -- Cellular applies for a special permit for n.ew tower Planning commission denies permit after company rejects alternate locations VIRGffqlA (02/24/03) -- In 2000, U.S. Cellular (Cellular) announced it in- tended to erect a communications tower to fill in coverage gaps along Route 8 and near two cell sites. Representatives from Cellular identified property owne. d by Marshall as a good location, and the parties reached an agreement as tb where to locate the tower. Cellular conducted engineering studies and concluded the tower had to be 240 feet high, with a 9-foot lightening rod on the top. Further, Cellular decided the tower should be the lattice type and located within 80 feet of the property line, notwithstanding the 100-foot setback requirement. Cellular applied for a special use permit on May 1, ~002, from the Mont- gomery County Board of Supervisors. The County requested Cellular look into other locations and structures. A water tower was suggested along with two elec- tric transmission towers. Both of these suggestions were rejected by Cellular. The County Planning Commission conducted a hearing on June 12, 2002, and Finally voted to recommend denial because the proposal was not in com- pliance with the comprehensive plan. Cellular provided additional informa- tion, and the Commission decided to table the matter until a consultant deliv- ered his report. The zoning administrator submitted a report prepared by consultants that recommended a 199-foot tower. The report did not support Cellular's demand for a 240~foot tower. The planning commission met again and, after considerable testimony, the proposal failed. No citizen other than members of the planning commission and the board of supervisors spoke i2 opposition to the proposal at any of the five public hearings. The motion failed by on.e vote. The comission approved a motion for a lower tower measuring 195-feet. Apparently, the only reason the planning cornission rejected the 240-foot tower was for aesthetic reasons. Cellular and Marshall sued the county, alleging the denial of the permit for a 240-foot tower was a violation of the Telecommunications Act of 1996. They claimed the decision to deny the permit was not supported by substantial evi- dence. Both parties asked the court for judgment. DECISION: Judgment granted in part. ' Cellular failed to show the denial was a prohibition of service.-- a Tele- communications Act violation -- because the county showed readiness to com-. promise on a shorter tower. However, the county could not base its denial upon aesthetics alone, so the denial was null and void, and the county had to ~ant the special permit. The Telecommunications Act of 1996 provided: "Any decision by a State or local government or instrumentality thereof to deny a request to place, con- struct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence."