State-Journal.com - There's no stopping a cell tower

Photo By State Journal/Kelly MackeyResidents were surprised when Verizon Wireless recently constructed a 307-foot cell phone tower on Green Wilson Road.

Verizon Wireless wanted to construct a 307-foot cell phone tower on Green Wilson Road last year.

But after a public hearing where several voiced opposition, the Frankfort/Franklin County Planning Commission vote 4-2 in April 2007 to deny the request for the tower.

That's why Tony Sutherland, of 138 Iron Drive off Green Wilson Road, was shocked and irate to see the cell phone tower being constructed in front of his house last week.

"It went up quick," Sutherland said. "It's uglier than crap. I don't have a cell phone, don't want one, and won't ever get one."

But he said he's stuck with looking at the tower from his home.

Cellco Partnership, doing business as Verizon Wireless of Indianapolis, challenged the planning commission's denial in U.S. District Court in Frankfort.

Judge Karen Caldwell, in April of this year, found there was a violation of the Telecommunications Act and that evidence given by the tower's opponents was inadequate.

Caldwell ordered the planning commission to "issue all permits necessary for Verizon to construct the tower."

The 10-acre, 375 Green Wilson Road site is zoned Rural Residential and owned by Julian and Zelma Perkins.

Franklin County Magistrate Huston Wells, whose 5th District includes Green Wilson Road, said the federal court ruling bothered him.

"Evidently Congress made a law saying you can't impede any kind of signal," Wells said Sunday evening.

"The bottom line is telephone companies are able to supersede any laws local governments put in place concerning cell towers."

Wells said Fiscal Court discussed appealing the federal court decision.

"I would have loved to have appealed it," Wells said. "But it would have been a waste of taxpayers' money. It's unfortunate."

Wells said county Planning Director Robert Hewitt is studying laws related to the issue, "looking for ways to strengthen planning and zoning ordinances to find a loophole to keep this from happening to another neighborhood in Franklin County."

Attorney Richard Sullivan, representing Franklin County government in the federal case, said in an April 21 letter to County Attorney Rick Sparks and Hewitt that "an appeal of this matter would have a moderate chance of success.

"If there is an appeal the applicant might lose its ability to lease the property during the pendency of the lawsuit, thereby giving Franklin County a victory."

Franklin County Attorney Rick Sparks said there were "some issues we could have appealed on. But at the end of the day I don't think there would have been a whole lot of likelihood to win the appeal."

Sparks said he didn't recommend appealing the decision.

Caldwell said in the written court opinion "Only five residents explicitly objected to the visual impact of the tower. They objected primarily because they would see the tower from their houses and the tower would be "unsightly.'

"These objections represent "generalized expressions of concern with aesthetics.'"

The same objection could be made by any resident in any area where a tower was proposed, Caldwell said.

"Even if the objections of some of these residents should be considered as specific objections to the placement of the tower in this particular area because it is rural and residential, the objection of a few residents is not substantial evidence warranting the denial of an application where there is uncontradicted evidence that the tower is necessary and there is no other suitable location," Caldwell wrote.

Between the public hearing in March 2007 and the planning commission's vote to deny a month later, the planning commission received a letter from David Pike, attorney for Verizon, indicating a denial would be challenged.

Pike's letter said Verizon's application to construct the tower fully complies with all state and federal requirements, and that Franklin County regulations conflict with state law.

Pike also said there were "critical errors in the enactment of the purported wireless telecommunications regulations of Franklin County."

No regulations were included in the text of a 2000 Franklin County Fiscal Court ordinance adopted to regulate wireless communication facilities, Pike said.

At the public hearing, Pike said the "tower would radically improve service in the area."

He said Verizon has exhausted all other possible locations, including silos, church steeples and water towers.

"It is impossible to put a 200-foot tower on a 100-foot-tall water tank. There are no other suitable locations."

After the planning commission's vote to deny, Green Wilson Road property owner Ethel Lee said she was "very surprised," but elated.

"I think the residents of the area decided to come out and make a stand," Lee said.

"I think we won due to the fact we stood up for what we believed. We didn't want people to railroad us and ruin our neighborhood."

Since then Lee and her husband, Jesse, have moved to Anderson County. The cell tower issue was part of the reason they wanted to move, "but the main reason was we were downsizing," moving to a smaller residence.

"I feel sorry for neighbors who have to put up with it," she said. "I still don't think a cell phone tower should be allowed in that type of setting."