OCEAN CITY – For the second time in roughly six months, a private-sector telecommunications company has filed suit against Ocean City’s denial of the installation of small-cell towers in residential communities, and for the second time the town has filed a motion to dismiss the case.
In July, private-sector wireless communications company Crown Castle filed a civil suit in U.S. District Court challenging the Town of Ocean City’s denial of the installation of three small-cell towers in the north end of town. The town’s motion to dismiss that case was later denied by a federal judge.
In early December, Crown Castle filed a similar suit against Ocean City challenging the denial of three other small-cell towers in the Mobile Home (MH) zoning district in the Montego Bay community after a spirited public hearing in October. Two weeks ago, the town filed a formal answer to that second complaint, asserting it should be dismissed. Last Monday, a federal judge approved a motion to consolidate the two cases in the interest of judicial expedition after the two parties consented to the consolidation.
For the record, Crown Castle installs small-cell towers around the resort and contracts with wireless providers such as Verizon and Sprint, for example, to provide the hardware. Last 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 at 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, communities. Crown Castle responded by filing suit in federal court challenging the town’s denial for those three locations. Ocean City filed a motion to dismiss that case, a motion that was ultimately denied.
After the town denied three more applications from Crown Castle for small-cell towers in the MH zoning district in Montego Bay in October, the telecommunications company filed a second complaint in federal court in December, again challenging the town’s denial. Earlier this month, the town, through its attorneys, filed a formal answer to the second suit, seeking its dismissal.
In its second suit challenging the town’s denial of the three Montego Bay locations, Crown Castle asserts it has established a need for the small-cell towers to improve and enhance wireless service in the residential community.
“This case involves Ocean City’s unlawful denial of Crown Castle’s applications to install telecommunications services equipment in the public rights-of-way on three new street light poles in an area of the town-zoned Mobile Home Residential (MH),” the complaint reads. “Crown Castle has attempted to work cooperatively with the town for several years to obtain approval for Crown Castle to deploy necessary advanced telecommunications facilities to serve residential areas of the town. Indeed, Crown Castle has identified a specific need for wireless service in the area around the proposed three MH nodes, and made numerous proposals and attempts to remedy that need.”
Crown Castle’s second complaint seeks a declaration and judgment that the town’s actions are in violation of the company’s agreement with Ocean City and an order requiring the town to grant the company’s applications to install the three nodes in the MH zoning district.
“The town’s denial was not supported by substantial evidence contained in the written record and the denial effectively prohibits the provision of telecommunications services and personal wireless services in the vicinity of the proposed three MH nodes,” the complaint reads. “Ultimately, the town’s denial is unreasonable and unjustified, and, therefore, the town unreasonably withheld its approval in breach of the right-of-way use agreement between the parties.”
However, in its formal answer to the second suit, the town asserts it has the authority under Federal Communications Commission (FCC) rules to deny the three requested towers in Montego Bay for aesthetic reasons.
“In areas of the MH zoning district adjacent to where Crown Castle sought to place the facilities, there are no above-ground utilities in the rights-of-way,” the answer reads. “Each of the homes has a decorative light post on private property in the front yard. Crown Castle proposed to install facilities in the rights-of-way on structures that are significantly larger and bulkier than the decorative light posts, and higher than the highest building in the area. It effectively demanded special treatment as compared to other utilities using the rights-of-way.”
The town’s formal answer asserts Crown Castle has not established a need for the three requested towers in Montego Bay.
“An expert hired by the city reviewed the data and concluded that it did not demonstrate a need for the facilities,” the answer reads. “His report was not contested, either before or at the public hearing on the applications. The town issued a written decision in the form of a resolution, denying the applications based on the record of the proceedings on the application. On the record presented, the town was not required to approve the facilities.”
