Subject: [NEXTEL-1] Cell tower placement under fire

From: [email-masked]
Date: Thu, 31 Jul 2003 01:55:18 -0400

Cell tower placement under fire

By Elizabeth Skrapits , Citizens' Voice Staff Writer  07/30/2003

In Bear Creek Township

Testimony continued late into Tuesday night at the Bear Creek Township zoning
hearing over the placement of a telecommunications tower on Meadow Run Road.

The tower was built by Nextel Partners for Summit Tower, LLP on the property of
David and Lois Cavanaugh.

During the course of the hearing, Bear Creek zoning officer Joseph Andrews
testified Nextel applied for the permit to build the 250-foot tower on Nov. 21,
2002, and it was granted by him the same day.

The revelation drew murmurs from the audience that filled the Bear Creek municipal
building.

Meadow Run Road resident Scott Tomkins, who requested the hearing, was the first
to testify. He was represented by Attorney Matthew Turowski.

Attorney Malcolm Limongelli represented the township, assisted by Attorney Susan
Smith of Camp Hill. Michael Grab was attorney for Nextel and Summit.

The main purpose of the hearing was to determine whether Tomkins's appeal was
timely - within 30 days of the issuance of the permit.

Tomkins testified he became aware of the tower on May 5, after hearing sounds of
construction; he said he attended a meeting of the township's board of supervisors
that night.

"When I heard bulldozers down the hill, I knew something was going on, but I
didn't know what," Tomkins said.

He claimed the supervisors "didn't really know what was going on either up at the
site. They couldn't give us any concrete answers."

Tomkins said he made a request in writing May 19 and was given a copy of Nextel's
permit application May 20.

Andrews said at several times that he did not keep copies of the actual permit.

On cross-examination, Tomkins denied an online complaint dated 7:30 May 5 to the
state Attorney General's Office of Consumer Protection was submitted by him. It
was not established whether the time was 7:30 a.m. or p.m.

Andrews testified that Turowski had filed Tomkins's zoning hearing request with a
$200 check June 10, but Andrews sent it back because it was incomplete; it did not
supply contact information for landowners within 200 feet of the site.

Turowski asked why Andrews had not told him the application was incomplete at the
time; Andrews said he did not review it until later.

It was determined construction on the tower began May 2.

After a recess to retrieve minutes of the May 5 meeting to confirm whether it
started at 6:30, Grab brought up a new issue.

He said in addition to determining whether the application for appeal was filed in
a timely manner, the issue of vested rights should be brought up.

Grab said case law in Pennsylvania had been established that even if a
municipality issues a building permit illegally or in error, the builder can still
get a vested right if certain criteria are met.

According to Grab, Nextel met those criteria.

Turowski recalled Andrews to the stand to quiz him on the plans for the cell tower
submitted with the permit application. It was determined the height was 250 feet;
that the property was in actuality zoned R-1 residential; that the lease area was
100 by 100 feet.

Andrews said he never saw the lease for any tower he permitted, declaring it was
none of his business.

Smith agreed that Nextel was not a public utility under the Pennsylvania Public
Utility Commission.

The testimony turned to whether under the zoning ordinance, the height requirement
of 35 feet applied to the tower.

Andrews said it did not, and read the definition of a building.

Turowski countered by asking for the ordinance's definition of a structure, and
asked whether the tower fit the description.

http://www.zwire.com/site/news.cfm?newsid=9920679&BRD=2259&PAG=461&dept_id=455154&rfi=6

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