A state Court of Appeals panel has upheld a lower court’s ruling that Rowan County commissioners were wrong to issue a conditional use permit for a radio broadcasting tower in Mount Ulla.
The three-judge panel filed its ruling today.
The county board issued the permit in 2011, but a judge in Rowan County Superior Court sided with opponents who said commissioners had already decided on the tower when they rejected a permit application in 2005.
County officials had argued the second application contained enough differences to make it a new request, but the Superior Court judge ruled it was essentially the same and ordered commissioners to revoke the permit.
Back in 2005, the board voted not to allow Davidson County Broadcasting to build a 1,350-foot tower on property owned by Richard and Dorcas Parker because it would present a safety hazard to Miller Airpark, a nearby private airstrip. The Lexington-based company appealed the county’s decision, but it was upheld in both a state appeals court and the North Carolina Supreme Court.
In 2010, Davidson County Broadcasting submitted an application for a 1,200-foot tower on the Parkers’ land.
A citizens’ group made up of the Miller Airpark Association, the Mount Ulla Historical Preservation Society and others asked commissioners to dismiss the application based on the fact they’d already ruled on the tower.
But in July 2011, county commissioners denied that request, saying 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.
The citizens’ group challenged that decision. In his 2012 court order, Superior Court Judge W. David 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.”
While Davidson County Broadcasting and the Parkers were also named in the court action and filed notice of appeal, only Rowan County filed a brief with the state appeals court. But judges there affirmed Lee’s ruling.
“The county is correct that the lowering of the tower by 150 feet constituted a change from the denied 2005 CUP application,” Judge Ann Marie Calabria wrote in a decision for the Court of Appeals. “However, a review of the whole record does not reveal any evidence that this change would undermine the reasoning behind the denial of the 2005 CUP application.”
Rowan County commissioners Chairman Jim Sides was on the board that approved the permit in 2011 and said at the time he voted in favor of it as a property rights issue. He said today while he’s not certain the county will go further with the case, he questioned the appeals court’s reasoning.
“Certainly, I think we disagree with that. We disagreed the first time, we’ll probably disagree again,” he said. “I don’t know whether we’ll appeal or not. We’ll have to talk to the attorney and get his advice.”
Davidson County Broadcasting hasn’t been sitting still awaiting a decision, but it hasn’t been successful in finding a different location. On Jan. 23, the Iredell County Zoning Board of Adjustment denied the company’s request to build the 1,200-foot tower on land near the Rowan County line.
Gig Hilton, principal owner of Davidson County Broadcasting, told the Charlotte Observer he planned to appeal the decision in Iredell County Superior Court.