Opponents of the proposed pair of cellular towers in Kingsmill received a setback Tuesday when a Gloucester Circuit Court judge denied a resident’s petition to intervene in an upcoming appeal.
Judge R. Bruce Long decided Kingsmill resident David Neiman, one of the founders of the Kingsmill Wireless Communications Advocacy Group created to keep towers out of the neighborhood, will not be allowed to participate in upcoming Circuit Court hearings. He will, however, be able to file a friend of the court brief, allowing him to submit relevant information that may be of help to the court.
“I don’t really know how to react. I certainly would’ve liked to have been a necessary party in the case,” Neiman said after court adjourned. “Now I guess I’ll file an amicus brief.”
Long made the decision after listening to nearly an hour of arguments from attorneys representing all the involved parties — Neiman’s attorney, John Tarley, Jr.; Deputy James City County Attorney Adam Kinsman; AT&T and Verizon’s attorney, Alan Albert; and the JCC Board of Zoning Appeals’ attorney, Donald Patten. Long asked each lawyer whether the case could be decided without Neiman, who appealed the Board of Supervisors’ decision to the Board of Zoning Appeals in December.
Tarley argued that as an aggrieved party, Neiman was a necessary party to the case. “He’s been involved from the beginning and we have an extensive record due to Mr. Neiman,” Tarley said. “It affects his property.”
The county’s Kinsman supported Neiman’s appeal, saying that the county “is solely interested in the correct interpretations of the ordinance.” The county ordinance dictates cell towers should be unnoticeable; Neiman argues that the proposed towers, meant to resemble loblolly pine trees, will be noticeable.
AT&T and Verizon’s lawyer Alan Albert argued Neiman was not a necessary party, however. “It’s not his land, it’s not his application,” he said. “This belongs to Busch.”
Albert suggested Neiman file an amicus brief, saying, “The question is not whether he be left outside the door. The question is whether he is needed.”
Despite additional support for Neiman from the BZA’s attorney, Long sided with Albert, saying, “I’m denying his petition to intervene, but I’m not going to deny him the opportunity to be part of the process.”
AT&T and Verizon each hope to build towers in the Kingsmill development. The plan was supported by the Kingsmill Community Services Association (a group that functions as a homeowners association and serves the interests of Busch) and approved by the James City County Planning Commission before Kingsmill Wireless appealed the decision. That appeal went to the county’s Development Review Committee, which also approved the plan. Kingsmill Wireless again appealed, this time to the Board of Zoning Appeals, which overturned the decision allowing the towers by a 3-2 vote on Dec. 18, 2008.
At that time, James City County, Verizon, AT&T, the Kingsmill Community Services Association and Busch Properties, Inc. all appealed the BZA decision. With the county attorney working on behalf of the county, the BZA was provided with no legal counsel and after months of searching, finally accepted Patten’s offer to work pro bono.
The hearing in Gloucester, the first for the case, was moved to a substitute judge after James City-Williamsburg Circuit Court Judge Samuel Powell III recused himself because a nephew works for the attorneys representing the two cell phone companies.
In other business, Judge Long also denied Patten’s request to supplement court records with December meeting minutes delivered to the court on Monday.
In the judge’s original request for information, the BZA was asked to supply minutes from their Dec. 18 meeting by March. The board supplied a transcript, but not the minutes. With no legal counsel for months, the board did not approve those minutes until last Friday, when their attorney had the members settle on their account of what was said in December. That account was submitted to the other attorneys and the judge on Monday.
Albert argued that the supplement to the record, made eight months after the original meeting, wasn’t trustworthy. “There is no way to look at these materials and not conclude they are additional and made up,” he said.
Kinsman added that he didn’t believe the minutes were part of the record, saying that the BZA had the benefit of eight months of hindsight to inform their opinions.
Denying the supplement would be punishing the BZA for not having appropriate legal counsel, Patten said. “It would be saying, ‘Too bad, BZA, that you didn’t have a lawyer,’” he said.
The judge decided not to allow the minutes as evidence, but instructed lawyers to closely examine a second supplement request, a list of 31 findings of fact. The attorneys for both sides will review the findings of fact and any items they agree on will be admissible in court and any items they disagree about will be presented to Long in a hearing on Sept. 17.