Stop the Tower

Item in The Northwest Current, 10/23/02

Superior Court delays American Tower suit

Elizabeth Wiener

A D.C. Superior Court judge agreed Monday to place on hold the American Tower Co.'s $150 million lawsuit against the city for revoking its permit to build a 756-foot television tower in Tenleytown, delaying both discovery and trial until a larger federal suit on the same issue is resolved.

The last-minute ruling by Judge Natalia Combs Greene spared Mayor Anthony Williams from a deposition on his administration's decision to revoke the permit two years ago. The deposition had been scheduled for today. Depositions of several other city officials and activist Tim Cooper, who led the Stop the Tower Coalition, have also been postponed indefinitely.

"We're pleased with her decision," said Peter Lavallee, spokesperson for the city's Office of Corporation Counsel, which had sought an unusual "protective order" to stop the deposition. "We won't have to fight [the case] on two fronts at the same time."

Cooper, who was slated to be deposed by American Tower's attorney Monday, called the ruling "extremely good news. The tower company was trying to do an end run around the federal case," he said. "Clearly these tactics were unfair, and the community should be pleased."

Robert Cave, who is handling the local case for American Tower, could not be reached for comment Tuesday.

The city is by no means out of the legal woods. The U.S. Circuit Court of Appeals is now considering whether to overturn a ruling by U.S. District Court Judge Paul Friedman that the company's lawsuit does not belong in federal court.

If it sides with the company, the case will be remanded to Friedman's court. If not, presumably the D.C. Superior Court will eventually hear the case, Lavallee said. He added that it is impossible to predict how soon the appeals court will rule.

A three-judge panel of the federal appeals court heard arguments in it phase of the case at a lively hearing last Friday morning.

Though the issue before the appeals court is a complex legal question of whether the company's beef with the city raises federal or constitutional issues, the arguments from both sides echoed the entire debate over the tower that still stand half-built just off Wisconsin Avenue at Brandywine Street.

"This case is about the District government's decision to revoke a legal permit after [the tower] was partially constructed and millions of dollars were spent," American Tower's attorney, Eric Van Salzen, reminded the judges.

Van Salzen argued the city committed "substantive and procedural due-process violations" by revoking the permit, after similar tower had been built, because of a political outcry in Tenleytown. "We did not have a fair hearing before disinterested parties. They said, 'The heck with the law, we're gonna stop this tower,' " he alleged.

"The heck with what law?" Judge Harry Edwards rejoined. "Are you saying, 'Because there was political content, the process was bogus'? You lose on traditional due-process grounds, because you got process."

"The District government is alleged to violate its procedures all the time," Judge David Tatel said.

Van Salzen then questioned Friedman's ruling that the tower clearly violates the federal height act, which limits all buildings in Washington to 130 feet unless the mayor grants a waiver. The way the company reads it, "a tower may be built to any height, if approved by the mayor," Van Salzen said.

Tatel was not impressed. Even accepting that interpretation, he said, the city had other reasons, dealing with setbacks and zoning, for revoking the permit. "There are ordinary problems to be resolved in [local] courts," he said.

Finally, Van Salzen argued the city violated a federal telecommunications act that bars local governments from hampering construction of wireless, or cell phone, towers.

There followed a technical debate on whether the Tenleytown tower qualifies as a wireless tower. It was proposed as a speculative venture for High Definition Television, as well as to replace three smaller cell phone towers already on the site, and the judges wondered whether the tower's height was dictated by the former use or the latter.

"You claim they prevented [construction] of a personal wireless tower," said Judge A. Raymond Randolph. "But you can still build one, not just 756 feet tall. You conceded the extra height is needed for HDTV, not a federally protected wireless tower."

But when the city presented its case, the judges seemed equally skeptical.

Assistant corporation counsel Donna Murasky argued that the height act allows exemptions only if the mayor expressly grants a waiver, not merely if lower-level bureaucrats sign off on a building permit. She cited a 1986 government memo saying the city needed a written waiver from the mayor to build its own tower that exceeded height act limits.

"American Tower does not challenge the constitutionality of the height act, but argues the constitution prevents the District from enforcing it," she said.

Murasky also cited previous case law that states a government's actions must be "grossly unfair," with local appeals exhausted, before federal relief can be sought.

"The District did not deliberately flout the law," she told the judges. "At worst, we may have an erroneous interpretation of what the mayor approved. … There is a presumption of integrity attached to these government decisions."

Judge Edwards interrupted her. "You're making it too easy," he told Murasky. "Suppose you have a building hundreds of feet tall, already built, and someone says, you can't build it, everybody out, tear the building down. Isn't it unfair, if you go to the proper authorities, they say: 'It's fine.' you say, 'Are you sure?' They say, 'It's fine.' Then they say, 'No, someone higher up says tear it down.' "

The judges wondered whether American Tower should at least have gotten the opportunity to depose witnesses and present its case. "The claim is powerful, if you assume it's true the revocation was a political act," Tatel said.

The appeals court took the case under advisement and gave no indication when it will rule. But with the tower now standing half-built for more than two years, there is doubt whether it will ever be completed. "I think this is more about money now than anything else," activist Cooper said.