What began last year as a simple zoning dispute has now pitted two cellular signal tower companies against one other and put the city of Magnolia in the legal crosshairs.
The conflict comes due to the installation of a 195-foot monopole cell tower next to a water holding tower on city property, located behind Hampton Inn at 140 Hwy. 79 Bypass N.
The first hints of a legal fight came at an October 22, 2018, Magnolia City Council meeting, when reps from SBA Structures LLC and BRT Group LLC — the two Boca Raton, Fla.,-based cell tower companies — briefed the city council on their view of an argument over an easement and tower use permit issued the month prior by the Magnolia Planning Commission. In the motion, the commission granted BRT a C-2 (commercial) easement for a future signal tower to be built on city-owned land. But SBA is a competing company and operates the already standing tower on a privately-owned lot directly across Hwy. 79, next to El Compadre Mexican Restaurant.
The SBA-owned tower on the western side of the highway was stated to carry the T-mobile signal. The new tower would also use the same network at first but could have the ability to stack all four major wireless carriers' signals in the future, according to one fo BRT’s lawyers at the Oct. 22 meeting. For the new tower to be housed on the city’s property, attorney David Price, one of SBA’s legal reps, at the same meeting claimed the city would be paid $75,000 from BRT. The Magnolia attorney also stated that his client would “vigorously” resist the resolution to approve the easement if it was passed that night by the council.
City Attorney Mike Boyd in October warned the council that SBA Structures could pursue legal action against the city if the motion to approve the easement agreement was passed. He did not know exactly which avenue they may go down but said they could try to cite specifics in the law.
“They would have to allege that we did something wrong with our process or there is some federal violation that wasn’t proven in our planning commission meeting,” he said.
After hearing from all sides — SBA, BRT, and the city attorney — the council passed the easement agreement unanimously.
On Nov. 21, SBA filed two civil lawsuits against the city. One case was an administrative appeal and one pertained to “writs,” or a petition for writ of Mandamus. According to Cornell University Law School, a (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.
Less than a month after the suits were filed, the city inspector’s office, on Dec. 11, 2018, issued a building permit to BRT for the construction of a $180,000 tower on city land near the water tower. As of Thursday, a large monopole structure stands at the site.
SBA in its lawsuits asserted that the city, by passing the Oct. 22 ordinance for BRT Group’s tower (ordinance #1002), “failed to follow the mandates set forth in the Magnolia Code of Ordinances.”
“At the heart of the dispute, SBA Alleges that BRT applied to build a new cell phone tower in 2018, but that the city granted the application without requiring BRT to meet any of the procedural restrictions aimed at limiting cell phone tower construction as set forth in the city’s ordinances,” the petition said.
The suits name the city of Magnolia as a defendant, as well as Mayor Parnell Vann, and sitting city council members during the October 2018 granting of the tower easement agreement: Aldermen Jeff White, James Jefferson, Kelli Souter, Steve Crowell, Jamie Waller, James N. Moore, and Larry Talley. The suit in January was amended to also include City Inspector David Nelson and The Magnolia Planning Commission. The named defendants are not being sued personally, but instead, they are cited only in their official capacities as government members.
BRT Group on Jan. 19 also became involved in the case when it became an “intervening party,” taking sides with the city.
Listed attorneys for the defendants are a trio of Little Rock attorneys, Chad W. Perkron, J. Cliff McKinney II, and Tom H. Wyatt, as well as Boyd.
In a motion to dismiss the case filed Jan. 30, BRT claimed SBA’s issue all along was simply with the issuance of the tower use permit and not a matter of proper process. The motion pinpointed one sentence in a response by SBA that the BRT says shows the rival company’s true intentions with the suit.
“SBA buries the lead in its response by admitting, on the last page, that ‘SBA sees no point in denying BRT its easement,’” the BRT dismissal motion said. “SBA admits the resolution is a discretionary act and therefore not subject to mandamus.”
The BRT motion also claimed that the issuance of the tower use permit was obtained properly from the city.
“SBA now concedes that its true challenge is to the issuance of the tower use permit,” the court document said. “SBA does not dispute that it filed its motion to appeal more than 30 days after the issuance of the permit.”
Court filings also claimed: “BRT has the permit; SBA just disagrees with its issuance” and that SBA had the right to file an appeal for the tower use permit, but that it only did so after the 30-day window allowed for such a notice.
“Moreover, SBA’s contention that it can proceed with a backdoor challenge to the issuance to the tower use permit by challenging Resolution #1002 as a ‘rezoning’ decision ignores that the resolution approved an easement and did not rezone anything. And even if SBA’s appeal is timely — and it is not — its argument that it has standing to sue because 18 years ago it built a tower in anticipation of this very moment is simply to attempt to protect a monopoly that cannot suffice to create standing under Arkansas law.”
The plaintiff and defendants have already met once in court for a hearing on Jan. 7. The proceeding, though, was continued by Judge David Guthrie to an unknown date. On Wednesday, another hearing notice was issued. The opposing parties are next scheduled to appear in Columbia County civil court on April 18 at Magnolia’s courthouse.