
DATE: Thursday, October 2, 1997             TAG: 9710020539

SECTION: LOCAL                   PAGE: B1   EDITION: FINAL 

SOURCE: BY TONI GUAGENTI, STAFF WRITER 

DATELINE: VIRGINIA BEACH                    LENGTH:  125 lines

JUDGE: TOWERS CAN BE BUILT RULING COULD MEAN LOCALITIES CAN'T DENY PERMISSION

A federal judge has ruled that the city must allow AT&T and PrimeCo to construct two towers on the Little Neck peninsula despite protests from area neighbors and the City Council's unanimous denial of the project in March.

The ruling, the area's first under the federal Telecommunications Act of 1996 and one of less than 10 nationwide, has some local officials wondering if their power is being usurped by federal regulation.

``I would be very disappointed if there was ever an erosion of local land use control by some state or federal agency,'' Suffolk City Manager Myles Standish said. ``It is very important that a council or county board be able to reflect opinions of its citizens or make a decision consistent with the community's comprehensive land plan. Suffolk wants to be able to consider telecommunications towers on a case-by-case basis.''

U.S. District Court Judge Raymond A. Jackson found the Beach in violation of the act when it turned down Lynnhaven United Methodist Church's request for a conditional use permit to allow construction on its property of two, 135-foot towers for AT&T Wireless and PrimeCo Personal Communications.

The church was to have leased the site to the companies for $60,000 a year.

With rapidly changing technology in the telecommunications industry from cellular to digital, there has been a recent proliferation of these towers in Hampton Roads and the country. And with that onslaught, denials of towers have been rare.

In Virginia Beach, for example, only a couple of towers have been turned down by the City Council in the past five years, according to a city planner.

The Telecommunications Act was intended to speed competitors' entry into new markets. In addition to Congress, federal regulators are also aggressively promoting the expansion of services by auctioning licenses at a high price to providers of cellular-like services.

And the Virginia Department of Transportation is just one of many state and local agencies throughout the country seeking to capitalize on the explosion in telecommunications services by leasing state-owned land for cell sites.

The city of Suffolk owns five communications towers and is leasing space on some to pager and mobile phone companies.

In the case against Virginia Beach, Judge Jackson recognized that the city does not have a policy for turning down the towers.

But, he said, the council's decision denies AT&T and PrimeCo's rights under the act to compete in the area against existing cellular companies such as GTE and 360 Communications. AT&T and PrimeCo have entered the Hampton Roads market by opening digital service to customers.

Digital and cellular services operate on two different frequencies on the radio spectrum. Digital signals can carry more information, or more phone calls, than cellular service, but, with digital, more towers are needed because the signals aren't carried as far.

``Any decision to deny digital service providers the means to extend coverage to the Little Neck peninsula would favor the existing service providers, at the expense of newcomers,'' the judge wrote in his 28-page ruling released last week. ``This would be contrary to the intent of the Act, which seeks to intensify competition in the industry and introduce advances in technology.''

The city has 30 days in which to appeal the case to the 4th Circuit U.S. Court of Appeals in Richmond, L. Steven Emmert, a senior Beach city attorney, said.

Jackson, however, said the city must comply within 20 days, meaning the appeal would have to be made sooner.

The City Council is supposed to decide Tuesday in executive session whether to appeal the case and ask that the judge's order be put on hold.

If there is no appeal, the city has until Oct. 14 to approve the application.

But Councilman William W. Harrison Jr., who is quoted profusely in Jackson's ruling, said he's ``certainly anticipating an appeal.''

Harrison, who represents the upper-middle class Little Neck neighborhood as the Lynnhaven Borough council member, said the judge was wrong in interpreting the City Council's decision to mean that the council wouldn't approve the tower for any peninsula site.

Harrison said an application for a new site would have to be resubmitted to the city anyway.

``We were not going to put it at that church,'' Harrison said, so there was no point in postponing the decision. ``I think the judge hasn't really understood what we did.''

Jackson's opinion begs to differ.

Jackson says the Telecommunications Act requires the city to support its denials, and its reasons, in writing.

The city maintains that it provided ample written record of its denial.

Emmert also points out that because the law is new, all decisions haven't been tested at the appellate court level.

Jackson's decision has some Little Neck neighbors renewing their fight against what they contend would be an eyesore.

Sonja Perdue, one resident who initially helped rally neighbors against the towers, said several in the Little Neck community want the city to appeal the case.

AT&T and PrimeCo are ``using the Telecommunications Act to put these towers where residents don't want them, where the City Council doesn't want them,'' Perdue said. ``The voters have empowered the City Council to make these decisions, (and) AT&T, PrimeCo and Lynnhaven United Methodist Church are challenging that.

``If they win this, then the City Council wouldn't have any choice,'' she said. ``That's not the way a democracy is supposed to work.''

Others in the Hampton Roads community downplayed the decision.

Lewis R. White, a Virginia Beach telecommunications consultant, said it's an extreme case when a telecommunications company sues a jurisdiction.

Working relationships with these companies, planning departments and cities, in most instances, are professional and disagreements are worked out amicably, White said.

``I think most cities have taken into consideration that the Telecommunications Act is out there and are trying to abide by it,'' White said.

Jackson's ruling is ``just a reminder that the Telecommunications Act is out there,'' White said. ILLUSTRATION: Color photos

Virginia Beach's Lynnhaven United Methodist Church wants to lease

its site to AT&T and PrimeCo. for $60,000 a year.

Little Neck resident Sonja Perdue is against erecting the 135-foot

towers.

Graphic

Why more towers?

Unlike cellular service, digital towers can carry more information,

but more towers are needed because the signals aren't carried as

far.

Color staff illustration by Ken Wright/The Virginian-Pilot