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Item in The Northwest Current, 6/20/01

Judge throws out Tenley tower suit

Elizabeth Wiener

Attorneys for American Tower Inc. are vowing to continue the fight to build a 756-foot television tower in Tenleytown, despite a judge's stark ruling Thursday that threw the company's $250 million lawsuit against the city out of federal court.

U.S. District Court Judge Paul Friedman dismissed all federal claims against the city for revoking the tower's building permit after a flurry of protests from residents last fall. The procedural ruling, by most accounts, was a major setback for the tower company and a big win for the city.

It leaves Boston-based American Tower with limited options--filing a new case in D.C. Superior Court, appealing Frideman's ruling to the U.S. Court of Appeals or asking Frideman himself to reconsider.

Tower company attorney John Brennan said Monday that the company will decide which legal avenue to follow within a week. But he scoffed at the notion that the tower opponents now have the upper hand. "This is just round one," Brennan said. "In our view, it's simply a delay and a change of place to have the fight."

Brennan said the company still has a solid case against the city for issuing, then revoking, its building permit last fall. "It still comes back to the point that the permit was fine until neighbors in Ward 3 complained," he said. "The city can't issue a permit and then walk away like that."

But Tim Cooper, a Tenleytown activist who spearheaded the fight against the tower, said the company has now lost its best chance to build. Appealing to a local court leaves American Tower with "a losing hand," Cooper said. "If they get in front of a local jury, it's a foregone conclusion they'd lose."

Cooper said the tower firm should now be considering an exit strategy. "They're smart people; they've spent a lot of money on litigation. Why throw good money after bad?"

He suggested the city might offer some funds to help dismantle the half-built tower off Wisconsin Avenue, just north of Brandywine Street. "It would not be unreasonable to expedite the end of this political and regulatory nightmare," Cooper said.

The company filed suit against the city in U.S. District Court last October, less than a month after the Department of Consumer and Regulatory Affairs formally rescinded its building permit. Protesters said the tall industrial tower was inappropriate, and perhaps unsafe, so close to a residential area.

Judge Friedman heard the city's motion to dismiss the case in November, and with every month that passed without an official ruling, city attorneys felt more confident they would prevail.

Friedman's 15-page ruling is a sound victory for the city on every count. First, he rejected American Tower's claim that it was denied due process and that the rescission of a previously issued permit is arbitrary and capricious.

City officials stated the permits were issued in error, and that the tower did not have a formal waiver needed to exceed the federal height act. Those arguments, said Friedman, provided a "rational basis" for revoking the permit.

The city notified the company that it would cancel the building permit based on five errors it had "belatedly identified in the original permit review," Friedman wrote. American Tower got a chance to respond, "which is all that due process requires."

Perhaps most significantly, he ruled the city had not violated the 1996 federal Telecommunications Act, which forbids local interference with the construction of cell phone towers. That act inhibits local zoning control of "personal wireless service facilities," Friedman wrote. But the Tenleytown tower was designed primarily for broadcast of high-definition television, although cell phone antennas might be added.

"The primary purpose of the tower--and more importantly, the reason for its height--is to provide HDTV [high definition TV] services," the judge reasoned. "Congress simply could not have intended that any structure that has personal wireless communications as a secondary purpose is beyond the zoning authority of the state or local government."

Friedman dismissed the tower company's federal claims "with prejudice," meaning they cannot be refiled. The non-federal claims, "quintessentially local in nature," can be refiled "in a more appropriate forum," he ruled.

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