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Tower meeting canceled after legal question
(by Joseph Koziol Jr. - October 22, 2008)
Tower meeting canceled after legal question
By JOSEPH KOZIOL JR.
A meeting scheduled last week to hear Munson Township residents' comments on a proposed telecommunications tower did not come off as planned.
Township Trustee Andrew Bushman said the meeting had been planned to allow residents living near the proposed Verizon tower at Munson Valley Nursery, 9904 Mayfield Road (Route 322) to quiz company representatives. The tower would be at the rear of the property.
However, Verizon representatives asked for a delay after hearing from the attorney of a property owner abutting the proposed site.
Mr. Bushman said the residents were told of the developments and advised that another meeting would be scheduled for November.
The law requires that residents abutting the proposed tower site be notified of Verizon's plans. However, trustees agreed that more people than just those abutting the property would be affected and invited the 10 property owners on all sides of the site.
The letter that threw a wrench into plans for the meeting was sent Oct. 10 from the Cleveland law firm of Selker and Associates Ltd.
Marianne MacLean, a co-owner of Berkshire Hills Golf Course, said she enlisted the aid of attorneys to ensure that Verizon follows the rules of the township zoning code or finds another location for the tower.
The proposed 290-foot tower would exceed the township's code limit of 200 feet. A setback would have to measure the length of the tower, according to the code, but the proposed tower would be 40 feet from the neighboring property line.
Attorney Eugene Selker wrote that his client has a right, under law, to demand that the township enforce its code. "This is to reiterate the demand contained in my client's prior notice, namely that the Township Trustees and zoning inspector fulfill their responsibilities enforcing all township zoning laws that apply to the proposed construction of this telecommunications tower," he wrote.
Mr. Selker wrote that his client objects to the tower for the "very basic and obvious reason that my client's property and the proposed tower are all in a residential zone.
"Because of the residential zoning, the proposed tower fall clearly within the purview of the township zoning regulations prohibiting such towers," Mr. Selker wrote.
Trustees have said that case law has deemed telecommunication companies as public utilities, giving local government little power in enforcing regulations.
Mr. Selker wrote that the federal Telecommunication Act of 1996 did allow for "preservation of local zoning authority," which gives local goverments limited control.
"This tower is not permitted in the residential zone as proposed, unless Verizon can establish that the township regulations are unreasonable and illegal as defined in application of the federal law," he wrote.
Mr. Bushman said Verizon will likely have to be granted variances through the township's board of zoning appeals to justify its deviations from township zoning.
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