ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Saturday, December 21, 1996 TAG: 9612230068
SECTION: VIRGINIA PAGE: B-5 EDITION: METRO
SOURCE: CHRISTINA NUCKOLS STAFF WRITER
When they voted down a cellular tower near Dragon's Tooth last month, Roanoke County officials tried to avoid a lawsuit by putting their reasons in writing.
But U.S. Cellular is suing the county anyway, and the company's attorney says that document is evidence the vote was illegal.
The cellular company's lawsuit against the Board of Supervisors was filed Thursday in U.S. District Court. The company is asking the court to force Roanoke County to grant a permit for the tower or, alternatively, to hold another public hearing on the issue. The suit also asks for unspecified monetary damages.
U.S. Cellular had proposed a 190-foot lattice tower on the lower slope of Cove Mountain at Virginia 311 and Newport Road (Virginia 624) in northwestern Roanoke County. Supervisors were unanimous in their Nov. 19 vote to deny the request.
The lawsuit accuses supervisors of violating the federal Telecommunications Act and Virginia's Freedom of Information Act.
Richard O'Brien, an attorney for U.S. Cellular, said the federal law was violated because supervisors did not have sufficient evidence to deny the tower permit. Supervisors based their decision in large part on fears that one tower in the Catawba region would establish a precedent and attract still more into the area. They expressed concern that the tower would be visible from the Appalachian Trail and Virginia 311, which has been designated a Virginia Scenic Byway.
O'Brien said the vote was a surprise because the cellular company had obtained consent from the U.S. Forest Service and the Appalachian Trail Conference. He said U.S. Cellular had agreed to shorten the tower so lights and candy-striping would not be required. The company had proposed to paint the tower a grayish-green color to blend in with Cove Mountain.
"We thought we had taken everyone's concerns into account," he said.
The lawsuit also noted that supervisors passed out written reasons for opposing the permit immediately after their vote, pointing to that document as an indication that "the board decided the matter prior to its vote at this hearing."
County Attorney Paul Mahoney said he is the author of the paper being questioned. He said he gave supervisors that document as well as a written statement listing reasons for approving the permit. It was up to them to choose which one they would adopt, he said.
Mahoney said he wrote both documents because a federal court in Georgia had previously overturned a local zoning decision prohibiting a cellular tower because the vote had not been supported with written evidence.
The lawsuit also said the supervisors' vote was made without a formal motion to deny the permit.
Catawba Supervisor Spike Harrison, who made the motion at the meeting, said he was not surprised by the lawsuit because the Telecommunications Act was passed so recently, in February, and represents new legal territory.
"With the changes in law, it says any government doing this has to show pretty good cause," he said. "They're testing this."
In a similar case, a Blacksburg paging company filed a suit in April against Montgomery County for denying a transmission tower.
Harrison said he hopes a trial can be avoided in the Roanoke County case, but there's not much middle ground because the issue is whether the tower should or should not be allowed.
"I do not think that Roanoke County will submit to a compromise," County Administrator Elmer Hodge said.
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