Stop the Tower

Item in The Northwest Current, 1/24/01

Federal judge mulls Tenley tower claims

Elizabeth Wiener

Even stupidity or gross negligence by city officials would not make the start-stop treatment of a giant telecommunications tower in Tenleytown a federal case, a city attorney argued in U.S. District Court Friday.

American Tower Corp. is suing the city for $250 million for halting construction on the broadcast and cell phone tower just off Wisconsin Avenue, after permits were approved and teh 756-foot tower was halfway up.

Friday's hearing, the latest chapter in what may be a prolonged legal struggle, was the city's attempt to get the case out of federal court and back to local decision makers who might be more sympathetic to city planning prerogatives and neighborhood concerns.

American Tower attorneys say the revocation of permits last fall was a political act that violated the company's right of due process, a federal claim. But Robert Utiger, the city's assistant corporation counsel, tried to convince Judge Paul Friedman that the case is a matter of local zoning law, the revocation a "reasonable exercise of local discretion."

Friedman seemed dubious. "There was such stupidity in granting this permit," he said. "I keep coming back to: these people got a permit; the application was very clear how tall it would be. If at the end of the day, someone concludes the District really messed up, where do they go?" the judge asked.

Attorneys for both sides said they expect a quick ruling on the procedural issue, clearing the way for either a trial in federal court of more hearings before the local Board of Zoning Adjustment, D.C. Superior Court and other local bodies.

The nearly two-hour hearing featured technical legal wrangling and unusually frank descriptions of the city's actions. American Tower received a building permit last March, but the city Department of Consumer and Regulatory Affairs revoked it after protests about the size and safety impact of such a large tower near a busy commercial area and several schools.

Utiger argued the decision to pull back the permit was reasonable, even if granting it in the first place was a big mistake.

"We don't deny that in taking a closer look, the city was motivated by protests from citizens," Utiger said. "The mayor can say, this is absurd to be built so close to Wisconsin Avenue; let's take a hard look to see if there's a reason to pull this permit. For elected officials to be sensitive isn't improper," he said, adding that that is what democracy is all about.

"Even gross negligence, even stupidity" is not the same as deliberate and knowing discrimination against a particular firm, the city's attorney said.

Utiger said the tower violates local setback requirements as well as the federal height act. "Even if other towers were already built in violation of the height act, it's not irrational to [stop this one] that was not built yet," he argued.

American Tower was given a chance to challenge the reasons for the revocation, but chose to file suit instead. "That constitutes due process," Utiger said. "They just don't like the result."

But to American Tower attorney John J. Brennan, the belated permit revocation was a deliberate twisting of regulations in the face of political pressure.

"Many other towers got the right to build exactly the way we did," he told Judge Friedman. "The city wants to characterize it as a terrible mistake, improvident, bordering on the absurd. But it's in a place zoned for broadcast towers. There are three others within a Frisbee throw."

What really happened, Brennan said, "is the mayor got his you-know-what kicked by people who really know how to kick. We were singled out for arbitrary state action for illegal purposes."

Brennan pleaded for the case to go forward so that the firm can complete discovery, a process allowing deposition of city officials and examination of city documents. "There may be an e-mail from the mayor to Carlynn Fuller [acting director of the Department of Consumer and Regulatory Affairs] saying, 'I don't care what the facts are. Just stop this thing.' "