=OCEAN CITY — Asserting its denial of proposed sites for small-cell towers in uptown residential neighborhoods was not a denial of a formal application from a private-sector telecommunications company, the Town of Ocean City this week filed a motion to dismiss a civil suit against the resort.
In June, the Mayor and Council had before them a request from Crown Castle to install three small-cell towers in residential neighborhoods in the north end of town. For the record, Crown Castle installs small cell towers and nodes around the resort and contracts with wireless providers such as Verizon and Sprint, for example, to provide the hardware.
The requests for three locations including Old Landing Road, Bering Road and Marlin Drive.
After considerable discussion, the council voted 4-3 to tacitly deny Crown Castle’s request for the three identified locations in the north-end residential, or R-1, district. In July, Crown Castle filed a complaint in federal court seeking an expedited review of the case, declarations and judgments that the town’s denial is not supported by the evidence and an order to require the town to grant Crown Castle’s applications to install and operate the three nodes in the R-1 district among other things.
This week, the Town of Ocean City, through its attorney, filed a motion to dismiss the case. In the motion to dismiss, the town asserts the request from Crown Castle for the three north-end sites was not a formal application, but rather a feeling-out of sort to see if resort officials could support the proposed sites before moving forward with design and engineering of the small-cell towers.
The town asserts in its motion to dismiss Crown Castle have never formally applied for the three proposed locations, making the federal suit the private telecommunications company filed in July somewhat putting the cart before the horse. It could come down to semantics, but the case could hinge on whether or not Crown Castle actually filed applications for the three sites. The town believes it did not.
By way of background, wireless facilities providers such as Crown Castle are essentially free to install equipment in public rights-of-way per the federal Communications Act approved in 1996 and challenges have been upheld in different jurisdictions around the country. For its part, the town of Ocean City has a right to deny locations or designs of the nodes for aesthetic reasons. Although the council has been consistently divided on the issue, it has been reluctant to approve the nodes in R-1 residential areas.
In the memorandum in support of the motion to dismiss Crown Castle’s suit, the town asserts the wireless provider has never filed a formal application for the three proposed sites.
“Considering only materials the court is entitled to consider, the court may conclude as a matter of law that the town code requires submission of an application for wireless facilities, that the town has not denied any application for any facility in the R-1 district, and that, at most, the town has chosen an interlocutory basis not to approve proposed locations in the R-1 district before any application is submitted,” the memorandum in support of the motion reads. “Crown Castle filed applications for facilities in the Montego Bay (MH) district, but not in the R-1 districts. Crown Castle only informally requested City Council consideration of the proposed locations for facilities in the R-1 district and there is no allegation that Crown Castle completed the design or engineering of the facilities in the R-1 district.”
Again, in the motion to dismiss, the town asserts Crown Castle was mere seeking tacit approval from the council on the three proposed sites, and not approval on a formal application.
“Crown Castle’s interpretation of the code in this regard is wrong,” the memorandum reads. “There is nothing in the text of the town code or the DAS requirements that precludes submission of an application if the City Council fails to approve a location, and there is nothing in the code that requires City Council approval of a proposed location as a pre-condition to submitting an application.”
Absent a formal application for the three small-cell towers, the town’s denial of the three proposed north-end sites does not represent a blanket rejection for small-cell towers in any other residential areas, thus making Crown Castle’s suit appear premature, the motion to dismiss asserts.
“An applicant may, if it chooses, request the town to approve a location before submitting an application, but this is not required under the code or otherwise, and action on such a request does not preclude submission of a full application,” the memorandum reads.