Addison Township and its Zoning Board of Appeals (ZBA) has filed a 43–page response to a recent appeal filed by Kingsbury Country Day School, its trust and neighboring residents to overturn a decision made by the ZBA to grant a dimensional variance for a cell tower proposed by Verizon Wireless through the Oakland County Circuit Court. Verizon has also filed a response to the appeal. For information on the lawsuits filed by Kingbury and the residents, please read “Kingsbury, residents appeal ZBA cell tower decision” at oxfordleader.com.
In its response, Addison Township stated that proper procedure was followed in the granting of the variance for the proposed cell tower and that the ZBA did have the jurisdiction to approve the dimensional variance for the cell tower.
The response also stated that only a party “aggrieved” by a decision made by the ZBA may file an appeal with the circuit court.
“According to the Michigan court of Appeals, a ‘neighboring landowner’ merely alleging a likely increase in traffic volume, or a loss of aesthetic value, or a general claim of economic loss, has not alleged special damages sufficiently to become an aggrieved party,” the brief states.
“I’m not sure that they will qualify as an aggrieved party,” Davis told this reporter.
It also stated that there was no conflict of interest to invalidate the ZBA’s decision, as the appellants had argued.
While appellants had argued that the township was required to disclose to the public that it would receive annual rental revenue of around $17,000 from Verizon if the cell tower is constructed, Addison Township argues that there was no such obligation.
“Under the appellants’ logic, any time that any person or entity seeks a variance (from the ZBA), a disclosure about their financial gain is required,” the township’s brief stated.
Verizon, in its filed response, described the appellents’ claim that the ZBA was required to disclose its financial interest in the project as “meritless.”
“The applicant is properly listed as Appellee Verizon. The project is funded by Verizon Wireless and anticipates a private construction project of a wireless communications facility on land owned by the Apellee Addison Township. Having the Applicant and the property owner execute the municipal applications is customary and proper; the property owner’s execution of the application indicates the property owner’s execution of the application indicates consent for the Applicant to file; it does not change the nature of the project,” Verizon’s response stated.
The township also stated the ZBA had not failed to state the grounds for granting the variance, as the appellants had argued.
The brief noted that ZBA Member Tony Spina had stated the grounds for granting the variance and had incorporated all of the arguments as to why the acreage variance was necessary in his motion to approve it.
The Leader reported on Spina’s statement in its July 19, 2017 article, “ZBA approves cell tower despite opposition.”
The township’s response also noted that Spina “concluded that there is no danger related to the proposed tower falling” before moving to approve the variance for the cell tower.
The township’s response requested that the circuit court dismiss the case because the appellants “do not have legal standing” or that it affirm the decision of the ZBA granting the variance.
Verizon also filed a 28-page response to the appeal on November 24.
Many of the arguments found in that response mirrored Addison Township’s.
Additionally, Verizon stated that “ample evidence” had been presented by Verizon and its engineers, contrary to what was argued by the apellants, to demonstrate that the proposed parcel of land was “best suited” for its wireless communications facility and that the property was the “least intrusive location” which will still meet the (cell) coverage needs of Verizon.
In its response, Verizon states that the site plan that was presented was developed by Verizon after “numerous consultations” with the Township Engineer, civil engineering firm PEA, Inc. located in Troy, and the Oakland County Road Commission.
“Wetlands setbacks, driveway approach from Oakwood, grades and plantings were incorporated into the careful site design and evaluation by the appropriate by the appropriate non-Township agencies,” the response continues.
Verizon’s response also noted that a preemption exists under the Federal Communications Act of 1996 which, in telecommunications cases, shifts the burden in favor of approval of the project unless there is “substantial evidence for a denial.”
Verizon also states that the proposed parcel of land is zoned as Public-institutional (PI), on which a wireless communications tower is defined as a “permitted accessory.”