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Cell tower cases on hold

Cell tower cases on hold

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Four cases involving a dispute between a landowner and a proposed cell tower development have been halted until later this fall.

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 four 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. The fourth case appeals the BZA’s decision on Rother’s third appeal to them.

At the end of last month, Madison County Circuit Court Judge David Franzen issued an opinion on the defendants’ plea in bar, dismissing the first count of the Rother’s suit in the first of the four cases. Franzen said the Nov. 4 appeal was improper and untimely, ruling that the automatic stay provisions did not apply. Franzen denied the plea in bar and demurrer in the second count, which seeks to determine the board actions in approving the SUP were invalid and the application itself is invalid because it doesn’t meet the requirements of the zoning ordinance. Attorney Patrick Taves, who represents the county in the cases, filed a motion seeking a reconsideration of the demurrer and pleas in bar, along with a dismissal of the complaint. He also asked for a reimbursement of the county’s legal fees and costs. That motion was supposed to be heard last week. However, that date was postponed.

Last Thursday, a joint order from all parties, including Taves, Rother’s attorney Roy Shannon and attorney Butch Davies who represents M&W Farm and the cell tower company, CWS X, was filed creating a stay in the case until Oct. 12. The stay is to allow CWS X, M&W Farm and the Rothers to negotiate a solution that is agreeable to all parties. The Rothers have long suggested the tower’s location be moved to another area on the property to minimize its impact on the view shed. It remains to be seen if that will occur.

A review date for all four cases has been set for Oct. 13 at 1:30 p.m. Any hearings or unresolved motions will be scheduled at that time.

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