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Back in court again over cell tower

Back in court again over cell tower

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Attorneys appeared back in court last week for motions hearings in the second of three cases involving a dispute between a landowner and a proposed cell tower development.

Late last year, William Rother who owns a farm property on Raceground Road, filed an appeal to the Madison County Board of Zoning Appeals (BZA) regarding the completeness of a special use permit (SUP) to construct a cell tower on a neighboring property, M&W Farm, in Uno off Rt. 231. The application was ultimately recommended for approval by the planning commission and approved by the board of supervisors in early November, the same day Rother’s appeal was filed. Since then, Rother has filed three more appeals to the BZA, all of which were denied. He has since appealed the decisions to the Madison County Circuit Court.

The three cases all involve the cell tower, with the first specifically alleging that the process was not followed for the initial Nov. 4 appeal which should have constituted an automatic stay on the application. The second and third cases appeal the BZA’s decisions on Rother’s second and third appeals to the circuit court. And, in court last week, Rother’s attorney Roy Shannon said a fourth case is forthcoming which will appeal the BZA’s decision on Rother’s third appeal to them. As of Monday, that case had not yet been filed in the court system.

Last Wednesday, Shannon, Patrick Taves and Rex Edwards appeared in court on a defense motion in the second of the cases. Taves represents the county in the matter while Edwards was appearing for M&W Farm and CWS X. Edwards said both of his clients had adopted the pleadings of Taves and their arguments would be identical to the county’s argument.

Taves argued in favor of the defense’s motion craving oyer. In Virginia, a motion craving oyer allows a party to demand production of a document referenced in a pleading, incorporating the document into the pleading. Taves requested that several documents be added including several letters between the defense and Shannon following the Nov. 4 appeal. Taves said the documents tell the full story of what happened and shouldn’t be hidden from the court. He said they all must be part of the review and analysis.

Shannon denied, stating the first count in his case is a writ of mandamus to send all documents associated with the case to the members of the BZA, namely the SUP application itself which he said wasn’t included. He said these documents Taves is addressing are argument letters.

Following an approximately 30-minute recess, Madison County Circuit Court Judge David Franzen agreed with Taves, granting the motion craving oyer for three documents and denying it for one.

Meanwhile, there has been conversation among the two sides about consolidating several of the cases into one. However, Shannon and Taves have not come to an agreement on how it should be done. Shannon said he’d like to consolidate the BZA appeals, including the one that hasn’t yet been filed, leaving the first case regarding the Nov. 4 appeal to stand alone. Taves disagreed, stating all of the cases should be consolidated.

Franzen seemed to favor consolidation, encouraging the two sides to come to an agreement on the issue. A phone conference was set for this week.

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