Durham News

March 26, 2014

Cell tower appeal denied, but case still open

Citizens appealing the city’s approval for a Sprint cellphone tower on N.C. 751 got a rebuff from the Board of Adjustment last week, leaving it likely the case is bound for Superior Court.

A group appealing the city’s approval for a Sprint cellphone tower on N.C. 751 got a rebuff from the Board of Adjustment this week, leaving it likely the case is bound for Superior Court.

Bob Hornik, attorney for the Good Neighbors of 751, said the decision on going ahead is up to his clients, but added, “They are passionate.”

The Good Neighbors, an association representing several neighborhoods near the proposed tower site, have been fighting the tower’s construction, and the regulations that allow it, for more than two years.

Passion, though, was not at issue at the Board of Adjustment, a “quasi-judicial” volunteer body authorized only to consider whether the requests it hears comply with Durham’s development regulations.

Dolly and Mel Fehrenbacher and Dorothy Croom, who spoke for the Good Neighbors at the board hearing, said afterward they weren’t surprised they lost. They said they and their lawyer had put some arguments on the official record they can take to make a case in court.

Those arguments involve the rules that, in practice, allow approval for a 120-foot cell tower in a residential district without regard to neighbors’ opinions – as long as it’s “concealed” as an oversized pine tree. Opponents want opportunities for public input, and more regard for safety, property values and what a tower’s neighbors will have to look at.

Hornik and his clients did bring up those points, to the exasperation of Board of Adjustment Chairman George Kolassa, who repeatedly asked those testifying to “focus” on facts and issues pertinent to how the site plan was approved. Those eventually came down to whether the application included all the details the law requires for approval.

Hornik argued it had not. Sprint’s attorney, Karen Kemerait, and Senior Assistant City Attorney Don O’Toole argued that it had. After hearing two hours of arguments, the board, without discussion voted unanimously in Sprint’s favor.

Barring appeal, the vote clears the way for Sprint to proceed. Hornick, Croom and the Fehrenbachers said they have not decided what to do next, if anything, but implied they were not giving up.

“That thing is just an accident waiting to happen,” Mel Fehrenbacher said.

Tower opponents have objected to its appearance, in “concealment” still standing almost twice as high as the natural trees that would surround it, but they said they have practical concerns as well: danger to homes and power lines if the tower should fall over, and a lightning strike igniting natural gas in two aged high-pressure pipelines running through the tower site and adjacent subdivisions.

The City-County Planning Department and City Attorney’s office, though, hold that the Sprint tower meets all regulations and therefore law requires its approval.

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