Stop the Tower

Item in The Northwest Current, 3/19/03

Tower equipment gone, but not suit

Elizabeth Wiener

The trucks and crane rolled up Wisconsin Avenue to Tenleytown in early March, then stopped at the base of the half-built telecommunications tower near Brandywine Street to remove rigging and other machinery at its base.

"We were concerned," said Douglas Aube, an attorney with the American Tower Corp., that machinery needed to build the tower "was only designed to be out there temporarily."

"We're just taking the equipment out," said a worker at the scene. "It can't stand another winter."

It has been three years since the city awarded permits to erect the planned 756-foot tower, and two-and-a-half years since the permits were yanked. An American flag that once sat atop the truncated tower has also frayed away, even as the company's legal case against the District government limps along--with no clear end in sight.

In early April, a city attorney will ask D.C. Superior Court Judge Natalia Combs Greene to dismiss American Tower's $250 million lawsuit. Assistant corporation counsel Robert Utiger will argue that the Boston-based firm never exhausted its administrative appeals on what has essentially devolved into a local land-use and zoning case.

At the same time, American Tower has belatedly asked the city Board of Zoning Adjustment to rule that the tower's setbacks meet local zoning codes. A hearing is now scheduled for April 29, but city attorneys will argue that appeal is also moot because it was filed more than two years after the permits were pulled. Normally such appeals must be filed within 30 days.

A separate hearing before the local Board of Appeals and Review, another local body, would hash out whether the tower company actually received a waiver from the federal height act, which limits most structures in Washington to 13 stories. But American Tower had asked for a delay in that case, and no hearing has been set.

Meanwhile, the federal courts have rebuffed all appeals from the Boston-based company to even hear the case. U.S. District Court Judge Paul Friedman ruled the case raises no federal issues, then declined to reconsider his ruling. Last October, the U.S. Court of Appeals upheld Friedman's decision, and on Dec. 23, the appeals court also flatly rejected American Tower's request for reconsideration.

The 30-day deadline for appealing that last ruling passed without action by the company's attorneys. "We elected not to go to the Supreme Court," Aube said.

"The federal case is dead," said Tim Cooper, a local activist and Tenleytown resident who helped organize opposition to the planned high-definition television tower. "It looks like checkmate to me."

Tower company officials are still fuming at the city's decision to revoke a legal permit and charge they are the victim of politically powerful residents of Ward 3. City officials somewhat embarrassedly say that a building permit should never have been issued and that there are serious height and setback problems with the plan.

Nearby residents raised health and safety concerns as well, about such a tall electromagnetic tower so near homes and a busy shopping area. They also expressed concern about danger from falling ice due to limited setbacks.

But what was once a cause célèbre on both sides now drags on with little public notice. Last Thursday, lawyers for both the city and the company showed up for a hearing before Superior Court Judge Greene, only to discover it had been inadvertently dropped from her calendar. The hearing is expected to be rescheduled in early April.

Aube said the tower company intends to keep pressing its case and is frustrated that no judge has yet considered the merits of its claim for damages. "Once we get it before a finder of fact in a courtroom, I don't see how any judge could rule against us," Aube said. "We're completely confident we could win."

He said the company, which builds high-tech television and cell towers on speculation around the country, has never faced a comparable battle. "Normally, when we get a permit, they let us build," the tower company's attorney said.

City officials are also sure they will prevail. "The District is confident in its position," said one of the attorneys on the case.

But Cooper, who lives within the shadow of the tower, speculates it will never be built, and that the company is simply hoping to win some monetary claim.