DATE: Wednesday, October 8, 1997            TAG: 9710080492

SECTION: LOCAL                   PAGE: B5   EDITION: FINAL 

SOURCE: BY JOHN MURPHY, STAFF WRITER 

DATELINE: VIRGINIA BEACH                    LENGTH:   50 lines

BEACH COUNCIL TO FIGHT JUDGE'S RULING ABOUT TOWERS THE CITY HAD REJECTED A LITTLE NECK SITE, A MOVE THE JUDGE SAID VIOLATED U.S. LAW.

The City Council on Tuesday decided to fight a federal judge's ruling that it must allow construction of two telecommunication towers on Little Neck peninsula that had been rejected after neighbors protested.

The case, which involves towers on Lynnhaven United Methodist Church property, could ultimately determine the city's ability to control the location of the growing number of such structures.

During the executive session of Tuesday's meeting, the council directed city attorneys to file a notice of appeal in U.S. District Court.

The notice, filed late Tuesday afternoon, asks U.S. District Court Judge Raymond A. Jackson to place a hold on his ruling while the city appeals the case in the U.S. Court of Appeals in Richmond.

At issue is Lynnhaven United Methodist Church's request for a conditional use permit to allow construction on its property of two 135-foot towers by AT&T Wireless and PrimeCo Personal Communications.

The church planned to lease the site to the companies for $60,000 per year.

In March, the council - responding to protests from neighbors - unanimously denied the proposal, prompting a lawsuit against the Beach by the church and the two telecommunications companies.

In September, Judge Jackson ruled against the city. In a 28-page opinion, the judge argued that the council's decision denies AT&T's and PrimeCo's rights to compete in the area against existing cellular companies such as GTE and 360 Communications by offering digital communication services.

Digital and cellular services operate on different frequencies in the radio spectrum. Though both require communications towers, the digital services need more because their signals don't carry as far as cellular transmissions.

The Telecommunications Act of 1996 says that telecommunications competitors should not be obstructed from entering new markets, Jackson noted.

Jackson said the city also violated the act when it failed to provide its reasons for denying the project in writing.

In making the decision to appeal, city officials countered that they have provided a written denial. City officials also argued that they have no intention of preventing companies from competing in the city.

Councilman William W. Harrison Jr., who represents the Little Neck neighborhood, said he would be open to another site on the peninsula.

``I have nothing against the telecommunications industry - it's progress,'' he said.

But Edward R. Bourdon Jr., an attorney representing the church, predicted that any of the available sites on the peninsula would create controversy.

``No matter where you put it, it's not going to be easy,'' he said.

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