The city is asking for the dismissal of a lawsuit filed March 21 by AT&T, after city officials denied the company’s request to build a cell tower on Moore Creek near the Roger Short Soccer Complex.
In a motion to dismiss, filed April 21 in the U.S. District Court of Northern Mississippi in Aberdeen, City Attorney Jeff Turnage writes that AT&T’s lawsuit is both procedurally and substantively flawed, claiming the “abusively long” nature of the lawsuit alone is grounds for its dismissal.
“The Complaint violates the spirit and letter of Rule 8 of the Federal Rules of Civil Procedure which requires a ‘short and plain statement of the claim, showing that the pleader is entitled to relief,’” Turnage wrote. “Plaintiff’s complaint has over 100 paragraphs and does not state a Count until paragraph 90.”
In its lawsuit, AT&T alleges Columbus, through its planning commission and city council, violated the federal Telecommunications Act of 1996 when it denied the company’s application to build a 155-foot monopole tower on Moore Creek. The site, leased from Lowndes County, was chosen to fill service gaps and increase capacity, especially in areas south and west of Moore Creek.
The city council rejected AT&T’s permit to build the cell tower Feb. 18 after the planning commission recommended its denial twice due to concerns regarding the pole’s vicinity to the Roger Short Soccer Complex and the future Burns Bottom Redevelopment site, as well as concerns that it may lower surrounding property values.
In its complaint, AT&T alleges denying the permit based on “generalized aesthetic concerns” violates federal law and claims the city was provided ample evidence that wireless communications towers do not adversely affect property values.
In its response to the complaint, the city argues the denial was not based on “generalized aesthetic concerns,” adding that opposition to the site was based on specific concerns that the tower would be “out of harmony” with the surrounding soccer complex and park as well as the planned Burns Bottom district.
The response further stated AT&T failed to provide “competent or credible evidence” to support its claims about property values.
AT&T’s complaint argues its application for construction of the tower complied with all of the city ordinances’ requirements. The city rebukes this claim and says the proposed tower did not comply with the stated purposes of the city’s ordinance, citing Sections 30 1/2-27 and 30 1/2-41.
Section 30 1/2-27 of the city ordinance states its purpose is to regulate the placement, construction and modification of towers and telecommunications facilities. It states one purpose of the article is to “minimize adverse visual impact of towers and telecommunications facilities through careful design, siting, landscaping and innovative camouflaging techniques.”
AT&T argues in its lawsuit that objections to the cell tower were not supported by any evidence. The city disagrees.
“The Planning Commission … concluded that the tower’s extreme height and stark appearance was not in keeping with the surrounding area and that it could be located a short distance from the proposed site on the other side of the highway,” Turnage wrote. “Objections from the public, together with photo simulations have been found sufficient to constitute substantial evidence.”
The city also said that because AT&T did not determine how high the base of the tower would be above grade due to the site’s low elevation, the planning commission, mayor and council could not ascertain the total height of the tower, rendering the application incomplete and thus justifying its denial.
Procedurally, the city contends the lawsuit wrongly names the planning commission and the city council as defendants, stating neither has legal standing to be sued.
“The Complaint fails to allege that the City of Columbus Planning Commission is a separate legal entity from the City of Columbus … so the claims against the Columbus Planning Commission must be dismissed,” Turnage wrote. “… The Complaint fails to allege that the Columbus City Council is a separate legal entity from the Mayor and City Council of the City of Columbus … so the Columbus City Council must also be dismissed.”
The response also asserts that the planning commission acts only as an advisory board to the mayor and city council without decision-making authority, rendering claims against it invalid.
The city argues the court lacks personal jurisdiction over the planning commission and city council due to improper serving of legal documents by the municipal clerk.
Columbus also argues the lawsuit should be dismissed as AT&T filed its complaint more than 30 days after the final denial on Feb. 18.
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