Posted by: Patricia Salkin | March 10, 2015

NC Appeals Court Holds “Monopine” Cell Tower Meets Local Definition of Concealed Wireless Facility

A group of homeowners objected to the Durham City–County Board of Adjustment’s decision to approve construction of a 120–foot–tall cell tower on the property of St. Barbara Greek Orthodox Church. The Respondents include the City of Durham and Durham County, who approved the plans; the Greek Orthodox Community of Durham, which owns the land where the tower will be built; telecommunications conglomerate SprintCom, which will build, own, and operate the tower; and Philip Post & Associates, Inc., which filed the initial application to build the tower on behalf of SprintCom. Petitioners argued the trial court erred as a matter of law in affirming the Board of Adjustment’s determination that SprintCom’s proposed cell tower, which is designed as a “monopine” in order to blend in with a nearby grove of trees, qualifies as a concealed wireless communications facility as defined by Section 16.3 of Durham’s Unified Development Ordinance.

In analyzing this claim, the court looked to the ordinance in question, the Durham Unified Dev. Ordinance, which incentivized the construction of concealed WCFS. It defined a concealed WCF’s as “a WCF, ancillary structure, or WCF equipment compound that is not readily identifiable as such, and is designed to be aesthetically compatible with existing and proposed uses on a site.” As to whether the monopine was readily identifiable, the court found that the UDO’s plain language made it clear that the test was not whether or how quickly a longtime resident or passing motorist would notice this giant fake pine tree’s true nature; rather, the test was whether SprintCom’s proposed monopine design serves a secondary function that helps camouflage the tower’s function as a WCF. Thus, the court found that SprintCom’s proposed monopine tower was not readily identifiable as a WCF.

Second, the court found that in light of the evidence in the record that monopine towers generally resemble tall trees, SprintCom’s proposed monopine tower’s secondary function as a tree was aesthetically compatible with the Church property’s existing use as a church in a developing rural residential neighborhood, surrounded by houses and trees. Petitioner’s argument was therefore rejected, and the court held that the trial court did not err in affirming the Board of Adjustment’s determination that SprintCom’s proposed monopine tower qualified as a concealed WCF as defined by UDO section 16.3.

Fehrenbacher v City of Durham, 2015 WL 426058 (NC App. 2/3/2015)

The opinion can be accessed at: http://appellate.nccourts.org/opinions/?c=2&pdf=32215


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