Commissioners decide against pursuing litigation over Mt. Ulla tower

Published 12:00 am Wednesday, March 19, 2014

Rowan County commissioners no longer will pursue litigation concerning a permit for a radio broadcasting tower in Mt. Ulla.
The five-member board made the unanimous decision Monday following a lengthy closed session at the tail end of their regular meeting.
In mid-February, a state appellate court consisting of a three-judge panel upheld the ruling of a Rowan County Superior Court judge denying a conditional use permit for the tower.
The county issued the permit in 2011, but a judge in Rowan County Superior Court sided with opponents who said commissioners already decided on the tower when they rejected a permit application in 2005.
“The tower issue has been around for better than twelve years. The issue has been decided on by the N.C. Supreme Court based on a commissioner vote in August 2006,” Commissioner Jon Barber said. “The N.C. Supreme Court upheld that vote, which was that the tower did not meet many of the six conditions of the conditional use permit — primarily in the area of public safety.”
In August 2011, a special, three-day commissioners meeting was scheduled to discuss a new conditional use permit for the same application, Barber said.
“The only difference was the tower height had been lowered from 1,350 feet to 1,200 feet,” Barber said. “I voted against it because the new conditional permit did not meet three of the six conditions of the conditional use permit.”
Mt. Ulla residents appealed the commissioners’ vote and took it to Rowan County Superior Court, which ruled the board’s vote was wrong because of “res judicata” and “collateral estoppel” — the matter already had been judged and couldn’t be brought up again.
“Rowan County commissioners (Jim) Sides, (Carl) Ford and (Chad) Mitchell voted to appeal the superior court ruling, which meant spending taxpayer dollars to fight this on behalf of the applicant, Davidson Broadcasting,” Barber said.
The state court of appeals ruled unanimously that the superior court ruling was correct based on the same criteria.
Board Vice-Chairman Craig Pierce said judges twice have ruled the same way on the issue.
“Why waste the time and the resources on the same thing again if (the courts) are not going to pass it? It is something the judges don’t feel like we need to do,” Pierce said.
Continuing the Mt. Ulla tower battle not only would waste commissioners’ time, but the time of the attorneys and county staff.
“It eventually gets to a point where it is about proving a point or doing what is best for the taxpayers,” Pierce said. “In the end, it was a unanimous decision.”
Following the closed session, Barber wrapped the meeting up with a brief motion indicating commissioners would not appeal the appellate court’s decision.
“We voted to cease the appeals process and agreed to not take it any further,” Barber said. “To continue this appeals process would have been a poor decision for our taxpayers, just as the purchase of the mall was a poor decision for our taxpayers because they were not invited to participate in the decision.”