Board OKs south Durham cell tower

Mar. 25, 2014 @ 07:20 PM

Weighing in on the matter for the second time in less than a year, Durham’s Board of Adjustment has once again upheld the City/County Planning Department’s handling of a controversial cell-phone tower.

The 7-0 decision rejected an attempt by neighbors to undue the staff-level approval of Sprint’s plan for the proposed 120-foot-tall tower, which would go up off N.C. 751 on the property of St. Barbara Greek Orthodox Church.

Members conceded the vote likely won’t be the last word on the matter, as the neighbors can appeal to Superior Court.

And from Tuesday’s discussion, “it sounds like we’re starting to litigate this,” board Chairman George Kolasa said as the hearing neared the two-hour mark.

The neighbors have already been to court and lost. Visiting Superior Court Judge Howard Manning on March 19 upheld a previous Board of Adjustment decision that said the tower met the city’s standard for being “concealed.”

Its proposed disguise -- as a pine tree -- qualified the project for a staff-only review.

But Manning’s ruling only addressed the board’s decision last year on the camouflage issue. Tuesday’s hearing focused on the plan itself, which administrators approved in October.

At the outset, lawyers for the city and county cautioned board members against second-guessing Manning’s decision, leaving it to the N.C. Court of Appeals to decide whether the Wake County judge got it right.

“The concealment issue has been decided. It has been argued, it has been appealed and the Superior Court has ruled on that,” said Bryan Wardell, assistant county attorney. “To accept additional evidence and argument [on that] at this point is not prudent.”

The neighbors’ lawyer, Bob Hornik, initially tried to argue the board could in fact override Manning, as it was now weighing in on the actual plan.

“This board can change its mind about that and I will ask you to change your mind about it,” Hornik said.

But Kolasa, presiding, said he wouldn’t allow discussion of the camouflage issue. And Hornik admitted he’d brought it up only to put the question on the record so a judge can look at it if there’s another court case.

Hornik spent most of his time arguing that Sprint hadn’t given the city all the background information Durham law requires for cell-tower applications.

City/county land-use rules ask cell companies to provide information on the “service gaps or services expansions” a tower would address, along with evidence and reports that the sponsoring company has considered using an existing tower.

Hornik contended that Sprint had offered only bare-bones responses to those demands, via short letters from an engineer rather than detailed reports.

“They haven’t provided the evidence the ordinance requires them to provide,” he said. “They’ve provided lip service to it.”

He said AT&T owns a tower about a mile to the east -- off Fayetteville Road, behind newhope church -- that could conceivably provide similar coverage.

Sprint’s filing indicated the company’s current tower network provides weak signals in much of the Chancellor’s Ridge subdivision and the Stagecoach Road corridor. The tower at St. Barbara would fill in those gaps, especially to the west and southwest along Stagecoach.

But Wardell and Senior Assistant City Attorney Don O’Toole pointed out that the state limits the ability of city officials to consider such issues.

The N.C. General Assembly, in a law first passed in 2007 and rewritten in 2013, allowed cities to ask applicants to size up the possibility of using another company’s tower.

But it stopped short of saying they can use the existence of an alternative as a reason to deny an application.

And both times, first with Democrats in the majority, then with Republicans in control, legislators made a point of forbidding any attempt to force companies to explain the business or technical rationale for choosing a tower site.

The 2013 law, which took effect about 2½ weeks before administrators approved Sprint’s plan, says “a city may not require information that concerns the specific need” for a tower, including if it’s for expanded service or signal coverage.

O’Toole acknowledged the wording of the city’s ordinance doesn’t reflect the subsequent changes to state law. He said Sprint had voluntarily supplied information about its present coverage.