DATE: Wednesday, October 15, 1997           TAG: 9710150502

SECTION: LOCAL                   PAGE: B1   EDITION: FINAL 

SOURCE: BY JOHN MURPHY, STAFF WRITER  

DATELINE: VIRGINIA BEACH                    LENGTH:   76 lines

JUDGE'S RULING FORCES APPROVAL OF 2 TOWERS BEACH COUNCIL VOTES UNDER FEDERAL THREAT OF FINES OR JAIL TIME.

A reluctant City Council Tuesday voted to comply with a federal judge's order to approve the construction of two towers on Little Neck peninsula, despite protests from neighbors and the council's unanimous objections to the project.

``If I don't vote for this, I might go to jail,'' Councilman Linwood Branch III said in disbelief before the vote. ``. . . This is a sad day for democracy.''

``Our vote is not our free exercise of our discretion,'' said Councilman William W. Harrison in a prepared statement. ``We, in essence, are being held hostage by the Federal Communications Act - and our vote is not a true expression of how we feel about the application.''

The vote came hours after U.S. District Court Judge Raymond A. Jackson Tuesday denied the city's request for a delay while his ruling was being appealed.

That left intact Jackson's ruling requiring the council to allow AT&T and PrimeCo to build two 135-foot towers at Lynnhaven United Methodist Church, 1301 Little Neck Road.

On Sept. 25, Jackson argued that the council - which had unanimously denied the church's application to construct the two towers - must approve the towers under the laws of the 1996 Federal Communications Act. In that same ruling, Jackson gave the council until Tuesday to comply.

Last week, the council voted to appeal Jackson's order. It also asked Jackson to place a hold on his order during the appeal process.

Tuesday afternoon, Jackson decided that the city had failed to meet the criteria for a delay.

Under threat of fines or jail time if it ignored the judge's order, the council voted unanimously to comply, granting the church a conditional use permit for the towers.

The council will still appeal Jackson's decision in the U.S. Court of Appeals in Richmond. But appeals there can take months and may be academic. With the permit approved, AT&T and PrimeCo are allowed to construct the towers.

The council Tuesday added a condition to the church's permit. It says that if Jackson's ruling against the city is reversed, the council's approval of the towers is ``null and void.'' That would mean the city could demand that the towers be dismantled.

``Basically, we are telling them to build the towers at their own peril,'' said City Attorney Leslie L. ``Les'' Lilley.

Such a proposition raised questions for the attorney representing PrimeCo and AT&T.

``We are concerned that this condition doesn't conform to what Judge Jackson intended them to do,'' said Brad Stillman, an attorney for both companies.

Stillman did not know whether the companies would still build the towers given the condition added by the council.

The fight over the communication towers began in March, when the council - responding to complaints from neighbors - denied the church's application for a conditional use permit. AT&T, PrimeCo and Lynnhaven Baptist Church then filed suit against the city.

Judge Jackson ruled in a 28-page opinion 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 of the radio spectrum. Though both require communications towers, digital service needs more towers because the signal doesn't carry as far.

Under the Telecommunications Act of 1996, telecommunications competitors should not be obstructed from entering the new markets, Jackson ruled. Jackson said the city also violated the act when it failed to provide in writing its reasons for denying the project.

City officials have said they had provided a written explanation. ILLUSTRATION: Graphic

FACT

THE JUDGE SAID FEDERAL LAW ALLOWED AT&T AND PRIMECO TO COMPETE IN

THE AREA BY BUILDING 2 TOWERS.

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