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Item in The Washington Post, 11/2/00

New Construction on Tower Rejected

Bill Miller

A federal judge yesterday refused to let construction resume on a 756-foot telecommunications tower in Northwest Washington, saying he saw no need for emergency action in a dispute that could cost the D.C. government millions.

The ruling by U.S. District Judge Paul L. Friedman was a setback for American Tower Corp., which secured city permits in March to build the $5.6 million structure on 41st Street NW, near the Tenleytown Metro station. After community protests, the D.C. government revoked its building permit Oct. 5, stalling construction at 281 feet.

The company filed a federal lawsuit, alleging that Mayor Anthony A. Williams (D) and other D.C. officials engineered a "political power play" violating its rights under the Telecommunications Act of 1996 and other laws. Its attorneys wanted Friedman to permit construction to resume while the lawsuit was pending, saying they feared they would lose contracts and a competitive edge unless the work continued.

Although Friedman said he had questions about the D.C. government's conduct, he determined that American Tower would not suffer "irreparable harm" by awaiting a final resolution of the case. If the company prevails, he said, it could be entitled to recover any losses it suffered because of the permit revocation.

The American Tower litigation is one of two lawsuits filed in recent weeks after building projects initially approved by the city were later halted. The District is engaged in a similar battle with a developer over a nine-story apartment building in Cleveland Park that opponents say would threaten Rock Creek parkland. That lawsuit alleges that a stop-work order was issued for invalid reasons.

City planning officials said the apartment and tower projects were approved in error and that they now give projects closer scrutiny.

American Tower officials, who are seeking $250 million in damages, said the D.C. government has approved numerous towers of comparable size --including others in Northwest and one owned by the District at Ninth and Peabody streets NW.

During a two-hour hearing yesterday, company attorney John J. Brennan III complained that under community pressure, the mayor, D.C. Council and other officials used phony reasons to revoke the permit.

Neighborhood activists, who voiced concerns about the tower's safety, appearance and close proximity to Wisconsin Avenue, hailed the judge's decision. "It's an important next step," said Timothy Cooper, a leader of the Stop the Tower Citizens' Coalition.

But Friedman's ruling left open the possibility that American Tower could be permitted to complete the project. The judge set a follow-up hearing for Nov. 16. The company wants to use the tower to house antennas for regular and digital television, radio broadcasts, cellular telephones and other wireless services.

American Tower sought the permit to build the 756-foot structure last year. Its height was clearly stated in the permit application, and the D.C. government signed off in March.

Neighborhood residents complained to D.C. officials as the tower took shape, and the city suspended construction in September. The permit was revoked soon after, with D.C. officials saying they had failed to consider the size of the lot, the height of the tower and environmental concerns. Among other things, they said Williams hadn't waived limits set by a federal law that restricts buildings to 130 feet on a business street.

Friedman repeatedly asked why the D.C. Department of Consumer and Regulatory Affairs waited so long before raising concerns.

"I can tell you, your honor, that the mayor is asking the same questions," said Deputy Corporation Counsel Robert C. Utiger. "It's a government agency, made up of human beings. It was an error."

Staff writer Debbi Wilgoren contributed to this article.

2000 The Washington Post Company

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