Jessica Karmasek Mar. 22, 2016, 5:02pm


ATLANTA (Legal Newsline) - An Atlanta-based wireless communications infrastructure provider has filed a lawsuit against one of the largest counties in Georgia -- the same county that has, in recent months, filed a string of lawsuits in federal court against various telephone service providers.

Municipal Communications LLC filed its lawsuit in the U.S. District Court for the Northern District of Georgia, Atlanta Division, last week.

The named defendants include Cobb County, the Cobb County Board of Commissioners and its board members.

At issue in the case is Municipal’s request for a special-land-use permit, or SLUP, to place a wireless telecommunications tower and antenna facility on church property in Cobb County.

According to its March 16 complaint, the county granted the application and approved the requested SLUP, but, in doing so, it imposed an “impossible condition” requiring the tower to be moved 300 feet to the east.

This, Municipal explains, would move the tower off the site leased by it to another location that the company does not lease or control and that is unavailable to it.

Atlanta radio station WABE reported last month that Municipal will have to negotiate with Wildwood Baptist Church to use the property. The church has said it doesn’t want the tower on their property at all if it needs to be moved the 300 feet.

Although the church’s property is residentially zoned, it is not residentially used, making it a “preferable” location for a 190-foot monopole tower and antenna facility, Municipal noted in its 24-page complaint.

Municipal argues that the county’s condition requiring the tower to be moved 300 feet to the east is “unjustified and unsupported,” and simply doesn’t make sense.

“Moving the tower 300 feet east from the Site would move the tower uphill, to a more prominent location on the Church’s Property, and closer to Wade Green Road and the neighborhoods on the east side of Wade Green Road,” the company explained in its complaint. “Moving the tower to a higher elevation closer to Wade Green Road would make the proposed tower more visible to surrounding neighbors and travelers, not less.

“Moving the tower 300 feet to the east would also harm the Church by moving the tower into an undeveloped portion of the Church’s Property closer to Wade Green Road and limiting opportunities for Church expansion or other future development of the Property.”

Municipal contends it explained all of these issues to the county before the board made its decision last month, but the board imposed the condition anyway.

“As a result of the Defendants’ actions, Municipal Communications has been damaged irreparably and has no adequate remedy at law,” the company wrote.

In particular, the company is challenging the county’s imposition of the condition under the Federal Telecommunications Act of 1996, the county’s zoning ordinance, and the U.S. and Georgia constitutions.

Municipal seeks an injunction or a writ of mandamus directing the defendants to remove the condition and to allow the company to build its proposed tower at the leased and originally proposed site.

Atlanta law firm Holt Ney Zatcoff & Wasserman LLP is representing Municipal in the lawsuit.

The suit is Cobb County’s most recent battle with telecommunications providers.

In December, both Cobb and Gwinnett counties filed a string of lawsuits in federal court against various telephone service providers, seeking to recover millions in 911 charges that they allege have gone unpaid.

Just last month, the counties filed another lawsuit -- this time in Cobb County Superior Court against Comcast, the nation’s third largest home telephone service provider.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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