Fac­ing law­suit, county reaches set­tle­ment in cell tower dis­pute

The Catoosa County News - - COMMENTARY - By Adam Cook

Ca­toosa County com­mis­sion­ers, af­ter unan­i­mously deny­ing a pro­posal for a 160-foot cell tower near Di­etz Road in De­cem­ber, has agreed to a com­pro­mise by al­low­ing the com­pany erect a pole in­stead.

The com­pany, Gulf­shore Tow­ers (GST) Cap­i­tal Part­ners, LLC, had its eye on build­ing a new T-Mo­bile cell tower. Af­ter the spe­cial-use per­mit to do so was de­nied by both the Plan­ning and Zon­ing Com­mis­sion and the Board of Com­mis­sion­ers, the com­pany filed a law­suit.

“GST Cap­i­tal Part­ners filed a suit con­tend­ing that we vi­o­lated the Telecom­mu­ni­ca­tions Act of 1996 in deny­ing the spe­cial-use per­mit for the cell tower, and then fail­ing to grant the vari­ance,” County At­tor­ney Clifton “Skip” Patty said dur­ing the Board of Com­mis­sioner’s March 20 meet­ing. “The case orig­i­nated with the fil­ing of the spe­cialuse per­mit for a 260foot lat­tice tower to be con­structed. Af­ter the law­suit was filed, fed­eral pro­ce­dure re­quires that the lawyers con­fer about the is­sues in the case and a set­tle­ment was dis­cussed. GSP Cap­i­tal Part­ners has agreed to mod­ify their plans for a cell tower on this prop­erty. They have agreed to place a 150foot mono-pole and let this be a sin­gle pole rather than a lat­tice pole as a set­tle­ment of the lit­i­ga­tion.”

The big­gest rea­son for de­nial by both boards last year was due to the im­pact a new tower would have in the res­i­den­tial set­ting of Daily Mill Road.

The tower also would have vi­o­lated two guide­lines of the county’s code: be­ing higher than 100 feet and be­ing within 1,000 feet of a res­i­dence.

Patty ex­plained the pros and cons of agree­ing to the pro­posed set­tle­ment.

“The cons would be that if we lose the lit­i­ga­tion, then GSP Cap­i­tal Part­ners would have the right to build the 260-foot lat­tice tower,” Patty said. “The pros are that if we set­tle, there’s the mono­pole with light­ning rod, which is far less in­tru­sive than the lat­tice tower.”

Res­i­dents of the area in ques­tion, some of whom also at­tended the Dec. 19 meet­ing when the ini­tial idea was shot down, sat through the March 20 meet­ing, ex­ec­u­tive ses­sion, and re-opened ses­sion just to of­fer in­put on the mat­ter.

Com­mis­sion Chair­man Steven Henry asked the en­gi­neer to come up and show plans for the pro­posed pole. Af­ter look­ing over the plans, Henry and Com­mis­sioner Jim Cut­ler took those blue­prints and pho­tos to the res­i­dents in at­ten­dance and showed them what is be­ing pro­posed in the set­tle­ment and what could be in­stalled if the county were to lose in court.

“The prob­lem is, fed­eral law trumps county or state,” Henry told one res­i­dent.

The ex­change was a lit­tle dif­fer­ent than the stan­dard pro­to­col of hav­ing res­i­dents voice their com­plaints one by one at the podium.

“I know that was a lit­tle bit un­ortho­dox, but I felt it was per­ti­nent to in­volve the peo­ple clos­est to where this tower is go­ing to be,” Henry ex­plained.

Ul­ti­mately, the set­tle­ment was ap­proved on a 4-1 vote, with Com­mis­sioner Bobby Win­ters vot­ing no.

Ad­di­tional tower pro­pos­als

In ad­di­tion to the set­tle­ment is­sue, the com­mis­sion also had to de­cide on two other cell tower pro­pos­als from Ver­i­zon Wire­less.

The first pro­posal was for a tower on Boyn­ton Drive at Molton Lane, and the sec­ond on War­ren Road near Old Pine Grove Road off Bat­tle­field Park­way.

Ralph Wine­gar­den with Faulk and Fos­ter Real Es­tate of Grand Rapids, Mich., spoke on be­half of Ver­i­zon Wire­less.

“Sites like this present a dilemma be­cause as res­i­den­tial de­vel­op­ment and other de­vel­op­ment in­crease, the need is more and more there for han­dling the ca­pac­ity and de­mand pre­sented by that de­vel­op­ment,” Wine­gar­den said. “Res­i­den­tial pro­tec­tions are kind of more and more con­stric­tive in terms of what lo­ca­tions are out there for us.”

The board voted to ap­prove the tower on War­ren Road, but de­nied the re­quest to build the one on Boyn­ton Drive due to its prox­im­ity to two dif­fer­ent apart­ment com­plexes and Wil­son’s Fu­neral Home.

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