Judge sides with city in 8-year battle over cell tower, saying owner needs approval

May 2—The city of Santa Fe claimed a victory final month when a state district choose dominated in its favor in an eight-year authorized battle with an area firm accused of constructing an 80-foot cell tower on its property and not using a allow.

However, the struggle is prone to proceed, and with it, the tower’s presence.

Albert Catanach, president of web service supplier NMSurf, mentioned he plans to contest the current ruling. It requires him to return to the city for approval of the tower, which stands on his enterprise’s property in a midtown neighborhood close to Salazar Elementary School.

“This could go on for another eight years, probably,” Catanach mentioned.

The dispute started in 2016 after NMSurf, beforehand often called Computer Network Service Professionals, constructed a tower behind the enterprise at 1308 Apache Ave., which abuts a residential space.

City laws require a tower to be set again from property traces by the identical distance as its peak, which means an 80-foot tower might stand at least 80 toes from the property line. But a proposal for the NMSurf tower referred to as for it to face simply 16.8 toes from the corporate’s again fence, The New Mexican reported in 2016.

The firm had first notified the city of its plans to construct the tower in a letter in 2015.

The city maintained NMSurf would wish a waiver from the setback guidelines; the corporate argued it did not want a waiver resulting from each an current 77-foot rooftop tower the brand new tower would exchange and new Federal Communications Commission guidelines geared toward expediting development of telecommunications infrastructure.

The firm proceeded to construct the tower, refusing to heed an order from City Hall to halt development, The New Mexican reported. The city sued NMSurf and Catanach in 2016, and he countersued.

The city Planning Commission in 2017 unanimously denied the corporate’s request for a waiver for the setback necessities.

In an April interview, Catanach mentioned the Planning Commission had acted outdoors its authority by denying the waiver.

“They based it on unsubstantiated evidence that it was unsafe when it’s totally the opposite,” he mentioned.

Several neighbors who attended the 2017 Planning Commission assembly had objected to the tower, citing security considerations. They mentioned they feared the harm the tower might trigger to neighboring properties if it fell.

Catanach mentioned opposition to the tower stems from anti-wireless activists.

“There’s wireless activists in the city that believe wireless causes cancer, so they do anything to try and get you to not have wireless in the city,” he mentioned.

Catanach filed a lawsuit towards considered one of his neighbors, Andrea Cypress, accusing her of creating “false, defamatory and injurious” feedback on the Planning Commission assembly as she voiced security considerations. He additionally requested a choose to difficulty a civil restraining order “to prevent Defendant from speaking falsely about him in public forums, to the newspaper, and possibly others,” courtroom paperwork say.

A choose denied the restraining order and granted a movement from Cypress’ attorneys to dismiss the case in 2017.

Cypress declined to remark for this story.

Catanach has maintained federal telecommunications legislation allowed NMSurf to assemble the tower and has alleged the city is in violation of federal legislation. The civil case between the city and NMSurf ultimately landed in the New Mexico Court of Appeals in 2020, which despatched it again to the First Judicial District in late 2022.

Much of the dispute centered on a federal legislation concerning telecommunications permits and the city’s timeline for denying a allow for NMSurf, Assistant City Marcos Martinez mentioned.

“In the applicant’s view, they were able to avail themselves of an expedited federal process, which we, the city, contended never applied,” Martinez mentioned. “And the District Court and the Court of Appeals eventually agreed with us that this expedited procedure doesn’t apply to them.”

The Court of Appeals remanded the case to the District Court to find out whether or not the city had correctly complied with a part of the federal Telecommunications Act, in keeping with courtroom paperwork.

At an April 4 listening to, Martinez mentioned a choose dominated the city had validly denied the corporate’s software.

State District Judge Bryan Biedscheid issued an order April 25 denying a request by Catanach and NMSurf for a allow beneath federal telecommunications legislation and remanded the choice to the city to “process the Applicant’s application according to the City’s Ordinances governing telecommunication facilities applications and any required Planning Commission approval.”

City Attorney Erin McSherry mentioned the city’s understanding of the case is the corporate will now have to return to the Planning Commission to request a allow for the tower. If the request is denied, the corporate might attraction to the City Council. If the council additionally denied NMSurf a allow, that might pave the best way for the tower’s elimination.

Biedscheid wrote the city had happy federal necessities by denying the appliance in writing.

“The April 28, 2015 letter in the record between the Applicant and the City show that the City notified the Applicant, NMSURF, that the City could not approve its application unless and until the Applicant satisfied the City zoning rules on set-back requirements,” the order mentioned.

County Commissioner Anna Hansen, who’s president of the Casa Alegre Neighborhood Association that features residences close to the NMSurf property, mentioned she supported the choose’s choice. The tower impacts surrounding neighbors, who had not been consulted about its development, she mentioned.

“These large cell towers, it would be better if they were not right next to residential neighborhoods,” Hansen mentioned.

McSherry mentioned the corporate might attraction Biedscheid’s order, however she didn’t know of any grounds for an attraction.

“We have no reason to believe they’re going to appeal it. We think they’ll follow the District Court order,” she mentioned. “We don’t know of a basis for appeal.”

Catanach mentioned Thursday he doesn’t agree with the ruling and continues to consider the city is required to grant him a allow beneath federal legislation. He mentioned he plans to contest the choice in the Court of Appeals.

“We’re going to appeal it again, and we’re confident that we’re going to win,” he mentioned.

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