OCEAN CITY — A private-sector wireless telecommunications company’s civil suit against Ocean City over the installation of small-cell towers in residential communities will continue after a federal judge this month denied the town’s motion to dismiss the case.
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.
In October, the Town of Ocean City, through its attorney, filed a motion to dismiss the case. In the motion to dismiss, the town asserted the request from Crown Castle for the three north-end sites was not a formal application, but rather a feeling-out of sorts to see if resort officials could support the proposed sites before moving forward with design and engineering of the small-cell towers.
The town asserted in its motion to dismiss Crown Castle had 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. In somewhat of a cart before the horse case, the town’s motion to dismiss essentially asserted Crown Castle had never formally filed applications for the three north-end R-1 sites. Last Tuesday, a U.S. District Court judge denied the town’s motion to dismiss the case, asserting it was a moot point whether Crown Castle had formally filed applications for the three proposed residential sites.
The federal judge’s memorandum in support of denying the town’s motion to dismiss the case asserts the town’s tacit denial of the proposed uptown locations superseded the formal application process for Crown Castle.
“First, if Ocean City’s proposed exhibits are not considered, this court simply accepts as true the allegations contained in Crown Castle’s second amended complaint,” the order reads. “Crown Castle alleges that Ocean City specifically advised it that it could not apply to install the nodes unless the Mayor and Council first approved the location and design. Under that construct as alleged in the complaint, denial of approval by the Mayor and Council could well amount to a final decision, since Crown Castle would be left with no recourse, if, as alleged, it was also precluded by the denial from filing an application to obtain a more formal pronouncement. At least under a motion to dismiss standard, then dismissal would be inappropriate.”
The judge’s order essentially asserts the town’s motion to dismiss the case should be denied whether formal applications for the three nodes were filed or not.
“… Crown Castle has stated a plausible claim that the denial of approval by the Mayor and Council amounted to a denial of an application to install three R-1 nodes,” the judge’s order reads. “Thus, this court need not formally reach the appropriateness of taking judicial notice over the attachments, since Ocean City’s motion must be denied whether they are considered or not.”
