Cell-tower opponents file lawsuit

Jul. 29, 2013 @ 06:01 PM

Eight south Durham residents have sued the city and county to block the proposed installation of a 120-foot-tall cell-phone tower on the property of an N.C. 751 church.

Filed July 3, the lawsuit argues that Durham’s land-use regulations delegate too much authority to administrators when it comes to weighing applications for tower placements.

Questions like the compatibility of a tower with nearby homes are more properly the realm of “quasi-judicial” hearings before the city/county Board of Adjustment, the City Council or the County Commissioners, the residents say.

The suit asks a judge to invalidate several sections of Durham’s land-use ordinance and a decision last year by an administrative panel that favored the proposed cell tower.

The tower in question is ticketed for the property of St. Barbara Greek Orthodox Church off N.C. 751 and would serve customers of the Sprint network.

It’s drawn opposition from residents of the nearby Stagestop, Buck Crossing and Eagle’s Pointe neighborhoods.

Residents Dolly and Mel Fehrenbacher, Dorothy and Aaron Croom, Julia and Stuart Pimm and Susan and Larry Kensil joined forces to file the suit.

Also listed as a plaintiff is the Good Neighbors of 751, the informal umbrella group the tower’s opponents formed to lead their cause.

Lawyer Bob Hornik is representing them. He’s a member of The Brough Law Firm in Chapel Hill and is serving as Hillsborough’s town attorney.

The tower dispute has been going on for more than a year. Opponents have cited a variety of reasons for fighting it, including its appearance, potential effect on property values and safety.

Until this month’s filing, the legal quarrel had focused mostly on whether officials were right to consider the tower one that’s “concealed” by the standards of Durham law.

Its design calls for it to be dressed up as a tree, a disguise used by other towers scattered around the city and that in theory qualifies it for only an administrative review.

More or less the same group of residents formally challenged that in a Board of Adjustment proceeding in the spring. The board in May sided with administrators and Sprint in deciding the tower was sufficiently camouflaged.

The July 3 lawsuit didn’t challenge the board’s decision, though it did say a “separate appeal” will address the issue of whether the tower could be approved by administrators through what’s called a minor special use permit.

The suit instead asks a judge to apply to the case a doctrine that says cities and counties must use court-like procedures when an application requires a judgment call about issues like appearance and effects on property values.

That means among other things taking evidence using rules similar to those that would apply in a civil-court proceeding, and allowing the cross-examination of witnesses.

Administrative rulings under that doctrine should be limited to issues where the answer to a question is clear-cut – such as whether there’s a wide-enough buffer between a new structure and its neighbors.

Durham officials acknowledged last year that the city/county land-use law in a number of instances had been allowing administrators to make judgment calls. The two governments subsequently approved amendments intended to remedy the problem.

But leaders the Inter-Neighborhood Council – a coalition of neighborhood associations – questioned whether the amendments had gone as far as the state required.