Sykesville's attorney and neighbors of a proposed telecommunications tower asked the Carroll County Board of Zoning Appeals again yesterday to declare the county Planning Commission's approval of the site invalid.
The board heard three hours of arguments for and against the site, but indicated it would not render its decision for several days.
The opponents' attorneys questioned the county Planning Commission's approval, in August 1994, of a site plan for the 200-foot tower on Hollenberry Road and urged the board to reconsider that vote.
"Step into the shoes of the Planning Commission and reconsider the vote," Cynthia Hitt, who represents the Town of Sykesville, told the three-member board. "Failure to reconsider is wrong, arbitrary and capricious. If you rescind the vote, there is no approval."
For nearly two years, the steel tripod tower, which Cellular One proposes to build on private property and lease to other users, has been debated in public hearings, zoning appeals and Carroll County Circuit Court.
In four previous appeals, the board has voted in favor of West Shore Communications, contract builder of the tower. But the opponents remain undaunted.
"We contend the Aug. 16 vote was not legal and must be addressed," said Chris Tesi, attorney for Kathy Blanco-Losada, whose property adjoins the tower site. "The vote affected how the whole matter proceeded. The taint from that mistake continues today through all proceedings."
That allegedly tainted process "keeps snowballing into more process that doesn't correct the original error," said Ms. Hitt.
Clark R. Shaffer, the attorney representing West Shore, called for a dismissal of the appeal and said no new testimony could be presented.
"These people can't accept the fact that they've lost every proceeding before a land-use panel in the county," he said. "How many bites of the apple do they get?"
The board overruled his motion to dismiss the appeal.
In a brief review of the "torturous chronology," Ms. Hitt said the county violated its agreement with the town by failing to notify Sykesville officials of the site plan review last year. She and Mr. Tesi also questioned the legality of the Aug. 16 Planning Commission vote.
Planning Commissioner Zeno Fisher abstained, and the tower site was approved by a 2-to-1 vote. The commission later determined that Mr. Fisher should have recused himself and allowed an alternate to vote.
David Duree, the alternate, and then-chairman Lou Pecoraro, who could have voted to break a tie, both testified at a previous Board of Zoning Appeals hearing that they would have voted against the site plan.
The Planning Commission also granted West Shore a waiver of the requirement for a "fall zone," the area where the tower might land if it fell.
"Doing away with the fall zone was irresponsible," said Ms. Blanco-Losada. "The county has a responsibility to ensure our safety and well-being."
The County Commissioners complicated matters by enacting legislation Oct. 31 that requires a fall zone, equal to the height of the tower and a 50-foot buffer zone.
"It is unbelievable how the Planning Commission and the BZA can approve a tower when pending legislation is directly contrary," said Ms. Hitt.
But the Planning Commission didn't take a second vote on the site plan. At its Oct. 18 meeting, Mr. Duree's motion to reconsider the vote failed for lack of a second.
"The Planning Commission could have reconsidered the plan and revoted," said Ms. Hitt. "Instead, they did nothing."
Mr. Tesi added, "They decided not to decide, not to correct what was wrong."
The decision on the legality of the commission vote now rests with the Board of Zoning Appeals, she said.
"The error falls within the BZA's scope," said Mr. Tesi.
Solveig Smith, the county zoning administrator, said the board "can rule the vote wrong, but the Planning Commission must do the reconsidering."
If the vote was illegal, then all proceedings which flow from the approval -- including the building permit -- are tainted, Mr. Tesi contended.
Earlier this month, Circuit Judge Luke K. Burns Jr. ruled that West Shore had "acquired vested rights" to build the tower, but the judge did not consider or rule on the legality of the commission's vote.
"The vote is tainted," said Mr. Tesi. "No matter how far we go, ultimately someone has to rule on it."
Ms. Blanco-Losada said she is unwilling to give up the fight, which she called an issue of justice. She urged the board to take action on "this hot potato."
"I have lived here 33 years, participated and contributed however I could to the well-being of the county," she said. "I have gone through the established channels to minds that are already made up.
"Passing on this hot potato is an injustice to me."