A Success Story from Virginia That May End Up in Court

Just when PlanWireless was putting the finishing touches on this story, we learned that Cellco Partners (the name that Verizon uses to sue local governments) had filed a lawsuit.  We decided to run with the original report anyway.

Kreines & Kreines, Inc. was asked by a long-time client, the Piedmont Environmental Council (PEC), to provide materials for a presentation to the Fauquier County (Virginia) Board of Supervisors in June 2006.  The issue seemed simple:

·       Several years ago, Kreines & Kreines, Inc. was instrumental in helping County staff,  PEC, and a broad array of citizens craft a County telecommunications ordinance with an 80-foot tall height limit (not exactly perfection, but much better than the 190-foot model). 

·       The 80-foot mark was selected by the Board of Supervisors because Fauquier County is also silo country, and that is the height of most farm silos.

·       Along comes Verizon Wireless who wants to place an 80-foot monopole at the Thoroughfare Gap, an historic gateway to this beautiful area.

When Citizens protested that this was inappropriate because it would be visually obtrusive in the County’s most scenic and historic gateway, Verizon proposed a “stealth” silo. Citizens agreed that the silo was worse than the monopole because it was even more visually obtrusive and located in the right-of-way of a highway, where a real silo would not logically occur.

To further emphasize the point to the Supervisors, photographer Jack Kotz (who grew up in the area) unfurled a 10-foot long panoramic photograph of the landscape that the silo would intrude upon.

PEC, supported by some great citizen allies, made the argument that, just because there’s an 80-foot height limit, doesn’t mean you can just place an 80-foot “stealth” silo anywhere … there are alternatives.

That was the key argument: the fact that alternatives had to be considered by the Board of Supervisors. 

Now, Fauquier County happens to be one of the more beautiful places in the Eastern U.S., but they just haven’t heard of putting cell sites on short utility poles in that area of the world.  So Kreines & Kreines, Inc. provided PEC with some photographs of utility pole mounts and informed them that:

·       If one utility pole-mount won’t work, then two or three will.  There’s no law that says when the carrier wants coverage, it must be provided by one cell site.

·       On the other hand, there is federal case law that says multiple small sites are a valid alternative to one tall site.

·       There’s also no law (yet), including the Telecommunications Act of 1996, which says Cellular or PCS coverage must be “seamless.”  We provided the quote from one of the Act’s authors that states:  “The Act neither mandates nor prohibits seamless coverage.”

But Verizon had also done its homework.  Not only did they have a Section 106 (National Historic Preservation Act) study that found no impact on Thoroughfare Gap, Verizon had a Fauquier County public safety representative testify that:

·       The County had a brand new 800 MHz trunked public safety system, built in 2004.

·       Nevertheless, back-up for law enforcement, fire protection, EMS and even Homeland Security was needed in the form of cell service.

When it comes to public safety, and you are in Virginia 50 miles from Washington D.C., you’d better have an unassailable argument to convince the governing body to deny a cell tower.

That’s what we think PEC had.  It seems to help that PEC, along with a supportive Board of Supervisors and an active citizenry, has had 40 years of successful open space, historic resources and quality of life preservation.  Here’s what PEC said to convince the Board of Supervisors when delivering a PowerPoint presentation illustrating the natural, scenic and historic resources of the area with photographs and maps, as well as photographs of alternatives, courtesy of Kreines & Kreines, Inc.:

·       Thoroughfare Gap is rich in Conservation Easements.

·       Thoroughfare Gap is rich in history, including a Civil War Battlefield National Historic District.

·       Thoroughfare Gap has designated scenic byways.

·       An 80-foot silo or monopole is inappropriate in this location because it is highly visible, and it would provide a precedent that would make it harder to deny similar applications in the future.

·       There are alternatives.

·       The public safety tests in 2004 showed the area scoring relatively high in coverage.

·       Verizon may want, but is not required to have, seamless coverage.

The Fauquier County Board of Supervisors voted 5 to 0 to deny the application.  All they needed were the arguments, which PEC gave them. PlanWireless will follow up to see what the judge says.  If the judge’s finding goes on to the Fourth Circuit of the U.S. Court of Appeals, we may see some fancy case law made.

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Kreines & Kreines, Inc.
58 Paseo Mirasol, Tiburon, CA 94920
Phone: (415) 435-9214
Fax: (415) 435-1522
e-mail: mail@planwireless.com