Attorneys for the Madison County Board of Supervisors and CWS X, LLC appeared in court last week for motions hearings in one 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 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 two more appeals to the BZA, both of which were denied. He has since appealed each BZA decision to the Madison County Circuit Court.
Last Wednesday, attorneys for the county, the communications company and Rother appeared in court for a demurrer and plea in bar filed by the defense on the first of the three cases. Special attorney for the county Patrick Taves argued that Rother’s pleadings are insufficient. As he said during the BZA hearings, Taves said the Nov. 4 appeal filed by Rother was based on if a public notice regarding the public hearing for the SUP stated the application was complete. Rother’s attorney Roy Shannon has repeatedly questioned the completeness of the application, stating it was missing several key pieces of information including reasons why other sites were not viable. Taves said the public notice doesn’t mention anything about the completeness of the application and according to state code, the application is deemed complete on the 11th business day after its received unless a notice of incompleteness is sent to the applicant. The latter didn’t occur in this case, meaning the application was deemed complete.
“It’s not a valid appeal because [the notice] is not a determination of completeness,” Taves said.
He said there was a board of supervisors’ resolution supporting the application noting it was in accordance with the county’s comprehensive plan; recommended for approval by the planning commission; would have six hookups on the pole to limit the need for additional poles; would solve the issue of little to no service in the area; would have space for the county’s emergency services at no cost; and the historical society found no adverse impacts. Taves said none of those things were rebutted by the plaintiff.
“You can’t appeal a notice about a public hearing,” he said. “You have to have a determination, you can’t appeal nothing. The notice didn’t aggrieve them. It’s a manufactured argument.”
Shannon argued the county didn’t allow for the automatic stay that should have occurred when the appeal was filed. He also said by issuing the notice, county planner Ligon Webb made determinations that the application was complete.
“In order to proceed to a public hearing, an obvious determination was made,” Shannon said. “The notice was the first time [the public was] aware [the application] was proceeding to a public hearing.”
Shannon said the county should have implemented a stay when the appeal was received, holding the matter over until the appeal could be decided by the BZA.
“They didn’t do what they were supposed to do,” he said.
Shannon said the process that should have been followed is based on the county’s zoning ordinance, which he said isn’t trumped by state code.
After hearing both sides, Madison County Circuit Court Judge David Franzen said he needed additional time before issuing a determination. It’s unknown how long that will take. In the meantime, both parties are due back in court this week for hearings on the second of the three cases.