Published: August 01, 2008 10:30 pm         

Friends of Battlefield sue to block cell tower

A group calling itself Friends of Richmond Battlefield and two individuals, Scott Rucker and the Rev. Teresa Scherf, have filed suit in Madison Circuit Court seeking to block erection of a cellular telephone tower on Joe Lick Knob near Kingston.

The litigants are seeking to overturn the Madison County Planning Commission’s approval in a 5-2 vote July 1 of a development plan submitted by Boulevard Properties LLC.

The planning commission had rejected the cell tower development plan in a 4-3 vote May 21 because “it adversely impacted historical sites” and failed to demonstrate that alternate locations were unavailable.

The suit claims that allowing a “virtually identical application” to be submitted after its rejection without waiting 12 months violated Section 401.5 of the county’s comprehensive plan and land use ordinance as well as state law.

When the cell tower application was placed on the planning commission’s July agenda, Planning and Codes Administrator Duane Curry said the 12-month wait for re-application after a disapproval applied to zone changes and not development plans.

Section 401.5 says:

“When an application for a land-use change has been disapproved by the Planning Commission or Fiscal Court, a request for another land-use change for that tract of land shall not be filed within 12 months of the date of disapproval.”

To support its claim that the applicant failed to explore alternate sites, the suit filed Tuesday by attorney John Lackey includes affidavits from owners of two high-elevation peaks in the area who say they were not approached by the cell tower company.

The statement by Russell Isaacs of Long Branch Road says he owns property of 1,400 feet elevation. Billy Alexander of Hickory Lane says he owns property 800 feet in elevation.

At the July 1 hearing, representatives of the cell tower applicant said a tower to the east of Joe Lick Knob could not relay signals to the Jackson Hollow, Red Lick and Big Hill communities from other towers along Interstate 75.

The suit also claims that all adjoining property owners were not properly notified by mail of the July 1 hearing.

Jeanne C. Logue, an adjacent property owner who addressed the commission May 21 in opposition to the plan, did not receive notification by mail of the July 1 hearing, the suit claims.

“She would have protested (approval of the plan) had she been notified” of the meeting, it says.

A required legal advertisement of the meeting in the Richmond Register incorrectly listed the meeting dates a July 10 rather than July 1, the suit says, and includes a copy of the advertisement.

By approving the cell tower application, the suit claims the planning commission violated county ordinances and state law that require it to support the Madison County Historical Society and related groups in their efforts to preserve the county’s historical resources and promote tourism programs highlighting the county’s history.

While members of the historical society spoke against the cell tower application on both May 21 and July 1, the society did not formally oppose the application.

Among evidence submitted with the lawsuit to establish the historical significance of Joe Lick is quotation from French Tipton, a local historian of the late 19th century, that calls “Joe’s Lick Knob the most conspicuous mountain in the county.”

In addition to the planning commission and Madison Fiscal Court, the suit names as defendants Shared Towers LLC, American Cellular LLC and property owners Scott and Rosemary Rowlette.

Among the applicant’s alleged errors, the suit claims that Shared Towers and American Cellular should have been named as applicants for the cell tower development plan instead of Boulevard Properties.

The suit also seeks compensation for alleged damages suffered by the litigants by site preparation for the cell tower that was begun “prior to final action of the commission.” It also seeks payment of the litigants’ attorneys’ fees.



Bill Robinson can be reached at brobinson@richmondregister.com or at 623-1669, Ext. 267.

     

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