Kingsmill Cell Tower Case Delayed Again

September 30th, 2009 by Kim Lenz

A Gloucester Circuit Court judge granted more time to lawyers trying to iron out an agreement over findings of fact in an appeal case pitting James City County against its Board of Zoning Appeals over its decision to reject a proposal to build cell towers in Kingsmill.A Gloucester Circuit Court judge granted more time to lawyers trying to iron out an agreement over findings of fact in an appeal case pitting James City County against its Board of Zoning Appeals over its decision to reject a proposal to build cell towers in Kingsmill.

In an afternoon hearing on Tuesday, Judge R. Bruce Long told lawyers representing James City County, the Board of Zoning Appeals and AT&T and Verizon they had until Oct. 13 to come to an agreement over which of the BZA’s 31 findings of fact were indeed facts. Although attorney Donald Patten is representing the BZA pro bono, he was unable to attend Tuesday’s hearing and sent attorney Doug Miller in his place. Miller was hired by the BZA thanks to unnamed benefactors in the county.

On July 29, Long had asked James City County Deputy Attorney Adam Kinsman, the BZA’s attorney Patten and AT&T and Verizon’s attorney Alan Albert to review findings of fact submitted by the BZA as evidence explaining how the board came to its Dec. 18, 2008 decision to approve an appeal to the Board of Supervisors’ vote to allow the construction of two cell towers in the gated community.

The BZA, denied legal representation by the county, was without counsel until May. The BZA’s findings of fact were drafted then, five months after the decision was made, and were unanimously approved by its members as an accurate account of how each member formed his or her opinion.

The lawyers were expected to come to an agreement over the findings of fact by Sept. 17. The hearing was twice delayed and it was clear in the first minutes of Tuesday’s proceedings that the lawyers had not yet come to a full agreement on what each side considers “fact.” Albert told the judge they were able to agree on 14 of the findings, but disagreed about the remaining 17. Miller sent his opposition an annotated version of the statement Friday, which Albert said he had no time to review. The lawyers also seemed to disagree on what the judge had wanted to hear Tuesday.

“We had a slightly different view of our marching orders after the last hearing,” said Miller, who had not been at the previous hearing, but said Patten briefed him. “We thought we would take a look at the findings of fact document and were directed to look at the record and try to agree on them. That didn’t really happen and I regret that it didn’t happen.”

Long clarified his request, saying, “A body such as the BZA, in order to reach a decision, had to make findings of fact. I was hoping you’d look at the record and if a fact was mentioned and you could glean it influenced the decision, that’s something to consider.”

Throughout the hearing, Albert said the findings of fact were presented as arguments. “This is less useful than if there were a unanimous decision and the board was just sloppy,” he said. The BZA had approved the vote 3-2. “These are essentially conclusions masquerading as findings of fact.”

He specifically cited a finding of fact saying the proposed cell towers would damage the aesthetics of the community, which Albert said was not a fact, but an opinion. “With respect to [findings of fact] 14, 15 and 16, it’s a different problem of relevance to what this case is about,” he said.

Kinsman told the court the county is unconcerned about cellular service; rather, the county is concerned about whether the BZA exercised efficient decision-making according to county code. “I regret that my friends from the BZA are at another table,” he said, later adding, “It’s the county’s position this document shouldn’t be a findings of fact.”

Repeatedly, Miller said the findings of fact were not an attempt to change the record, saying the record already exists in transcripts of the meeting. Long challenged, “If you have plenty of transcript, why this document?”

“The BZA is entitled to submit an explanation to the court,” Miller answered.

Long told the lawyers to figure out what they can agree on, saying, “If you’ve narrowed it, then that eliminates me having to decide whether facts one through 10 are admissible.”

Miller apologized for the delay, to which the judge responded, “I’m amazed you got as far as you did.”

The next hearing is scheduled for 11 a.m. on Oct. 13 at the Gloucester Circuit Court. Read more about the background of the case here.

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