Judge: County was wrong to allow tower
Published 12:00 am Friday, September 28, 2012
By Karissa Minn
SALISBURY — A Superior Court judge has ordered Rowan County to reverse its decision allowing a radio tower to be built in Mount Ulla.
Commissioners say they must now either reject the tower or take steps to appeal the court decision.
In his Thursday ruling, Judge W. David Lee said the Rowan County Board of Commissioners should have dismissed the permit application last summer because the case was already decided in 2005. The court did not rule on any other aspects of the case.
Davidson County Broadcasting had requested a conditional use permit to build a 1,200-foot broadcast tower on private property in Mount Ulla. Property owners Richard L. and Dorcas Parker joined in the request.
County commissioners voted 3-2 to allow the tower in August 2011 after a hearing that lasted 16 hours over three days. A citizens’ group made up of the Miller Airpark Association, the Mount Ulla Historic Preservation and others challenged that decision.
Mount Ulla resident James Rollans, a member of that group along with his wife Marian, said they are encouraged by the ruling.
“A large group of people have been involved with this, working toward keeping the Mount Ulla farming community full of residences and churches,” Rollans said.
But for the Parkers, the court order means more frustration in a decade-long ordeal.
“I’m disheartened that we can’t do things on our land, with this economy, to make a living and to sustain ourselves here without a few people making such a fuss,” said Richard Parker. “This would harm no one. But it would affect our ability to keep this farmland in our family.”
He said the family will have to speak with its attorneys to learn about any next steps they can take.
Back in 2005, the board voted not to allow a 1,350-foot tower on the Parkers’ property because it would present a safety hazard to Miller Airpark, a nearby private airstrip. The company appealed the county’s decision, but it was upheld in both a state appeals court and the North Carolina Supreme Court.
Greely “Gig” Hilton, owner of Davidson County Broadcasting, brought the new request before the board last year. The citizens’ group filed a motion to dismiss, saying the issue had already been decided.
But in July 2011, county commissioners denied that motion by a 4-1 vote, saying that the application was indeed new because the tower would be 150 feet shorter and the design had been changed. In addition, Richard Parker’s parents had been added as parties because their land would be used as a fall zone.
In his court order, Lee says the county made the wrong call, because none of those changes created a materially different application.
“Indeed, the evidence regarding potential hazards to safety at the 2005 hearing centered on any tower above 660 feet in height,” Lee wrote in an explanatory footnote. “The lowering of the maximum height of the tower in the application now under review to 1,200 feet is simply a distinction without a difference.”
County commissioners are now ordered to dismiss the conditional-use permit application.
Chairman Chad Mitchell said the county also has a chance to appeal, but he’s not sure what the board will decide to do next.
Mitchell agreed to allow the hearing last year but ended up voting against the tower permit, saying that it presented a safety hazard to the pilots at Miller Airpark.
“My opinion was… that it was a new application,” he said. “We’ll have to see what Rowan County’s options are in terms of appealing the order or denying the permit.”
Anthony Fox, the attorney representing the county in this case, sent an email to commissioners saying he’ll talk about those options at a future meeting.
Vice Chairman Carl Ford declined to comment based on Fox’s advice. Commissioners Jon Barber, who voted against both the tower and the second hearing, and Raymond Coltrain also chose not to comment on the case.
Commissioner Jim Sides mentioned the attorney’s advice and kept his statements brief.
“I don’t know what the commissioners are going to vote to do,” Sides said. “I voted to allow them to put the tower in. I think it’s a property rights issue, and I think people have the right to use their property the way they want.”
Hilton, County Manager Gary Page and County Attorney Jay Dees did not return calls Friday afternoon. Representatives from Miller Airpark could not be reached by press time.
Contact reporter Karissa Minn at 704-797-4222.