The Denison Zoning Board of Appeals unanimously rejected an appeal by Mobilitie regarding a city order to remove a cell phone tower that was constructed within the city’s right of way on Coffin Street. The city argued that the tower, one of two constructed by Mobilitie in Denison, was constructed illegally without the city’s consent or approval and violated city ordinance.
The 84-foot tower, and a second one located near 500 W. Chestnut across from City Hall, were built shortly after Christmas. The tower on Chestnut Street was removed last Saturday after a month-long fight between Mobilitie and the city.
“The city’s stance is that our right of ways are for authorized utility use and the city’s utilities,” attorney Andrew Messer, representing the city of Denison, said Thursday afternoon.
Mobilitie is a company that installs towers for cellphone and mobile data reception. Through this installation, Mobilitie argued that it was working to improve the public infrastructure and the ongoing need for cellphone coverage.
Representatives for Mobilitie said that they attempted to do their due diligence and thought they had proper approval for the project. This included a document signed by Water Foreman Brad Park.
“Essentially, where we are, Mobilitie spent a significant among of time to ensure everything was done correctly,” attorney Michael Moran, representing Mobilitie, said.
In its arguments, the city claimed that Mobilitie failed to get a building permit, licensing permit or right of way permit prior to building the tower on the property. The form that Mobilitie claimed authorized it to build was not a city form and was signed by someone who did not have the authority to approve this level of action, Messer argued.
Other concerns included a debate on what was being installed in the first place. While the application refers to the construction as a utility pole, officials with the city said it does not carry public utilities and instead is a cellphone tower. With this designation, there are additional requirements regarding notification, which were not followed, and other regulations, city officials said.
The issue started in June 2016 when Mobilitie first approached the city regarding the permitting process. During the meeting, Clarence West, special council representing the city, said Mobilitie expressed interest in four sites on public rights of way throughout the city, including the two on Chestnut and Coffin. Between June and December, Mobilitie and workers within the city’s public works department spoke about the project.
On or about Dec. 28, Mobilitie constructed the two towers. The next day, officials with the city contacted the contractors regarding the construction and notified them that no permit for the project could be found. On Jan. 18, the city ordered the removal of the towers within 30 days.
Mobilitie argued that it had signed documents that it felt met the needs to move forward with the project. Additionally, Mobilitie provided email records from it and city staff that seemed to imply that the city was on board with the project. Moran said the company was unaware of any additional permitting process or the need to receive approval from a right of way manager.
The document in question is a Mobilitie form labeled “Right of Way Utilization Application” and is not connected to the city’s form of application. The application form features the signature of Brad Park on the bottom, but does not feature a specific place for signature.
Representatives for the city noted that the form did not feature a permit number or list any permit fee. The form also noted an estimated cost for the work of about $15,000, but the city said it never confirmed this number.
“They are in our right of way right now for free,” City Manager Jud Rex said as a part of his testimony during the meeting.
Rex argued that Park would not have the authority to make this kind of decision. Park, who has since retired, was a foreman over the water department who had authority over issuing permits to check for utilities prior to work or excavation. Rex ultimately said any approval that Mobilitie thought it received was in error.
“That doesn’t make it right, but the city ordinance must be followed,” he said.
With regard to the emails, Rex said the conversations were not about the project itself but instead were regarding the utilities checks and the process to conduct one. Rex said that he and Public Works Director Bobby Atteberry were only included in one of these conversations.
The city also questioned other documents that were provided by Mobilitie. Officials noted that a building permit application was not submitted until after the fact in February. This application is still pending, City Attorney Julie Fort said.
Initial plans for the project, which were submitted by Mobilitie feature a stamp indicating “preliminary — not for construction.” Additionally, these plans were not sealed by a licensed engineer within the state of Texas.
“Why would Mobilitie submit this application if they thought they already had a permit,” West said. “They wouldn’t.”
Following the decision, board Vice Chairman Mike Davis said that Thursday’s action was outside the norm for the ZBA, but felt it was an example of effective city government in action. When asked about his vote, Davis said it ultimately fell back to the fact that there was no city documentation.
“The fact that there was nothing issued by the city of Denison other than an email chain is what made this for me,” Davis said.
This is not the first time that Mobilitie has had disagreements with cities across the country regarding the placement of cellphone towers within public rights of way. In July, the town of Cheshire, Connecticut, fought against Mobilitie plans to build a 120-foot tower within the city. Mobilitie notified the city of its intent to build the towers within the city’s right of ray, the Hartford Courant reported.
Requests to Mobilitie for comment regarding the decision by the board were not immediately answered Thursday evening.