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AT&T drops lawsuit over tower

By Alex Bridges -

WINCHESTER -- AT&T has dropped its lawsuit against the Frederick County Board of Supervisors over a proposed cell tower.

Judge John Prosser entered an order Friday in Frederick County Circuit Court granting a request by the firm to nonsuit a civil case that questioned the legality of a vote to deny AT&T Corp. a permit to build a monopole microwave tower at 2042 Martinsburg Pike.

Supervisors voted 5-2 after a public hearing at their May 13 meeting to deny the application for the required conditional-use permit.

But Winchester attorney Stephen Pettler Jr., of Hairston & Johnston PLC, claimed Stonewall Supervisor Charles S. "Chuck" Dehaven Jr. had a conflict of interest and should not have participated in the May 13 vote. In the lawsuit filed June 12, the plaintiffs asked a judge to reverse the supervisors' decision and declare the application approved. They also sought payment of costs and attorneys fees.

Pettler could not be reached for comment at his office late Friday afternoon.

County Attorney Roderick B. "Rod" Williams said Friday he could not comment on exactly how much time the plaintiffs have to bring the lawsuit back, if they could do so at all. In some cases filing a nonsuit leaves room for another plaintiff to have the civil action reinstated. Williams said he didn't know if such a reinstatement could happen given that the case pertained to a land-use matter.

According to the complaint, the Stonewall District supervisor had a "personal interest in a transaction" because his father, Charles S. Dehaven Sr., owns property adjacent to the site chosen for the tower. The supervisor lives behind his father's property, the suit states.

The plaintiffs claimed the board "was not duly authorized to act on the application pursuant to [the younger] Dehaven's motion" since he made the motion to deny the permit request.

Wesley Helsley Sr. and Melissa Helsley-Hall, named as plaintiffs, own property chosen as the site for the proposed tower and had entered into a contract with AT&T to lease the land to the company.

The suit claims the Helsley property does not lie in a developmentally sensitive area designated in the county comprehensive plan, contrary to a reason stated by Dehaven as to why supervisors should deny the permit. Since the developmentally sensitive area designation is unauthorized by Virginia law, the suit states the supervisors' reliance on it to deny the permit was improper.

The plaintiffs also claim the supervisors failed to comply with the county zoning ordinance and with the Federal Telecommunications Act of 1996 by not issuing within 30 days of the vote a written explanation of the action supported by substantial evidence.

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