[Durham INC] Herald Sun - Appeals court upholds permit for 751 cell tower

[Richard Ford]

From the Herald Sun

Appeals court upholds permit for 751 cell tower
Feb. 03, 2015 @ 05:42 PM
Ray Gronberg

DURHAM —
Saying it will be sufficiently well-disguised, three N.C. Court of Appeals judges have refused to block the construction of a proposed cell-phone tower off N.C. 751 that’ll be dressed up to look like a tree.

Issued Tuesday, their unanimous ruling turned aside complaints from eight nearby homeowners who say the tower’s height will make it “readily identifiable” as a tower, not a tree, meaning it won’t be “concealed” in the way Durham law demands.

But the neighbors’ argument “begs the question, readily identifiable to whom, exactly?” appeals Judge Linda Stephens said for the panel that reviewed the case.

While the homeowners “already are and likely always will be acutely aware of” the tower’s real identity, theirs isn’t necessarily “the proper vantage point from which to judge” the matter, Stephens said.

And they offered no evidence suggesting that “a reasonable person’s typical reaction to the sight of an unusually tall pine tree is to conclude that he or she just spotted” a cell tower, she said.

The ruling — joined by appeals Judges Sanford Steelman and Mark Davis — backed decisions in 2013 and 2104 from Durham’s Board of Adjustment and visiting Superior Court Judge Howard Manning that went in favor of the tower project.

Its sponsor, Sprint, wants to improve its network coverage in south Durham and, through an intermediary, arranged to put the tower on the property of St. Barbara Greek Orthodox Church.

The company proposed the tree disguise because Durham’s governments, from the early 2000s on, encouraged the use of concealed towers.

They explicitly allowed so-called “monopine” designs and rewarded the companies who used them with a quick, staff level permit review.

The practice continued largely without controversy until 2012, when the permit application for the St. Barbara property drew opposition from Dolly Fehrenbacher, Dorothy Croom and the other homeowners.

They’ve raised an assortment of safety and property-value objections to the project.

But because state and federal rules prevent local officials from considering many of those issues when it comes to cell-tower installation, the neighbors wound up focusing on the camouflage issue.

They argued that at 120 feet tall, the Sprint tower would stick out, literally, for being much bigger than the trees around it.

“There will be no question whatsoever the gigantic ‘pine tree’ towering above the surrounding area is a cell tower,” their lawyer, Bob Hornik, told the appeals court.

But lawyers for the city, the county and Sprint countered that “from many vantage points,” it will look no taller or “only slightly taller than the other trees.”

Stephens and her colleagues agreed, along the way rejecting the homeowners’ complaint that Manning had asked Sprint for additional “photographic simulations” of what the 751 tower will look like.

When the law requires a trial judge like Manning to conduct a ground-up review of a Board of Adjustment decision, the judge is free to ask for more information, the panel said.

The panel opinion began with a sentence acknowledging the public-policy dilemma involved in the dispute.

“This is a case about a giant fake pine tree and what it means to conceal the aesthetic externalities of modernizing our state’s telecommunications grid,” Stephens said.

Neighbors can appeal Tuesday’s ruling to the N.C. Supreme Court. But the panel’s unanimity means the high court doesn’t have to take the case.

Senior Assistant County Attorney Bryan Wardell said there isn’t another case pending in the courts about the 751 tower. So if the high court refuses to step in, Sprint’s contractors can go ahead and build the tower without fear of being ordered later to take it down.

The panel that issued Tuesday’s ruling was bipartisan. Stephens and Davis are Democrats; Steelman is a Republican.
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