ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Thursday, April 4, 1996 TAG: 9604040047
SECTION: CURRENT PAGE: NRV-1 EDITION: NEW RIVER VALLEY
DATELINE: CHRISTIANSBURG
SOURCE: KATHY LOAN STAFF WRITER
A Blacksburg paging company has filed a federal lawsuit against Montgomery County claiming denial of its request to build a new tower atop Price Mountain is unconstitutional and violates the new Telecommunications Act.
Paging Inc. claims Jeff Scott, the county's zoning administrator, and the Board of Zoning Appeals wrongly concluded, in denying the building permit, that the business was not a public utility.
In November, Paging Inc. sought a building permit to construct the tower next to several others at the end of Oilwell Road.
Scott rejected the permit application, saying the company could seek a special-use permit for the tower. That requires a public hearing and a Board of Supervisors' decision. In January, the Board of Zoning Appeals upheld Scott's decision.
Paging Inc. argues it should be able to build a new tower by right and avoid going before the Board of Supervisors because it is a public utility. Tower applications often become heated issues in Montgomery: two have been withdrawn in the face of controversy and one has been rejected in the past five years. Another was approved with relatively few objections in 1994.
The lawsuit filed in U.S. District Court this week includes much of the same argument that Paging Inc.'s attorney, Marc Long, used in an earlier memo to the county.
Long said Scott was misinterpreting the zoning ordinance and relying on a nonlegal dictionary definition of a public utility.
Long also alleges that the Telecommunication Act addresses "the inhibitory effect which local ordinances have on wireless services," placing limits on government's authority to regulate the placement and construction of facilities for wireless services.
Long says the county's ordinance "effectively preclude and frustrate [Paging Inc.'s] ability to provide telecommunications service."
He is asking a federal judge to issue a declaratory judgment for Paging Inc., to stop the county from further interfering with plans to build the tower. He asks for unspecified damages.
County Attorney Roy Thorpe said he doesn't believe the Telecommunications Act applies in this case, because he understands the language Long is relying on was deleted before the bill's final passage. Thorpe said the bill does not preclude local government from reasonably regulating towers through zoning restrictions.
"The question is ... can we have reasonable regulation that applies to the location of towers? We think the answer is yes," Thorpe said.
The county attorney believes this is the first time a BZA decision has been challenged in U.S. District Court.
An appeal of the BZA decision is also pending in Montgomery County Circuit Court.
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