Bath may go into the tower business ...

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BY CANDACE GOFORTH Beacon Journal staff writer,

Sunday, February 21, 1999

BATH TWP.: Two months after winning a rare victory in a battle to get a cellular telephone tower torn down, Bath officials may contract with a company to install another tower -- this one on township land.

The trustees are negotiating with the Anderson Group, a Pittsburgh-based firm that builds towers and then leases space on them to telecommunications companies. Usually, telecommunications companies lease land directly from property owners in order to build the structures, which they need to complete networks necessary to provide wireless telephone service to their customers. But recently, telecommunications companies have begun to get out of the tower construction business, contracting instead with construction companies like the Anderson Group.

Townships across the state have struggled with telecommunications companies for years over the issue of where such towers can be located. Officials on the local level have argued in court cases -- some of which have made it to the state Supreme Court -- that the companies must comply with their communities' zoning laws.

The companies insist they are public utilities and are exempt from the local zoning restrictions.

Bath Township has gone to court to fight two towers, one constructed at an Interstate 77 rest area, the other built near I-77 and Ghent Road.

The township lost the rest-area tower dispute, but succeeded in getting the Ghent Road structure dismantled late last year after the 9th District Court of Appeals ruled that Nextel Communications failed to prove it qualifies as a public utility.

But Trustee Donald Jenkins, who is leading negotiations with the Anderson Group, said the township decided to pursue the deal because, while the Nextel tower victory was encouraging, it does not guarantee future triumphs.

``The legal position of townships is questionable to say the least,'' Jenkins said. ``They're losing more than they're winning. And we can't afford to go to court every time a company wants to come in to the township.''

Despite that gain, Bath may be ushering in another tower. Under the deal being considered, the Anderson Group would erect a 190-foot tower on a spot near the township fire station at Bath and Cleveland-Massillon roads, where a 140-foot antenna tower currently stands.

In exchange, the township would get the leasing fee -- as much as $1,500 a month -- and a portion of the rent charged to telecommunications companies to ``co-locate'' their equipment on the tower. Also, the tower would host a township-wide paging system and an upgraded high-frequency communications system for the community safety forces.

Both systems would be paid for by the Anderson Group.

Jenkins said another advantage to the township is that the Anderson Group tower likely would host the equipment of several telecommunications companies, reducing the need for more towers.

He said he expects some residents will question the decision to lease township land for such a controversial purpose. But, he said, the arrangement may offer the township its best hope to have some control over the tower issue.

``You can't stop them. We won that one, but we didn't win it because it wasn't a public utility,'' he said of the Nextel tower case. ``All we're saying is, maybe we can't stop it, but maybe we can have a say in where its located.''

Jenkins said this potential deal does not mean Bath is bowing out of the fight to get the courts to legally recognize the authority of township zoning laws.

Bath is one of about 11 townships in the state contributing financially to the defense of cases in which Anderson Township in Hamilton County was sued by the communications companies GTE and Airtouch over the placement of telecommunications towers, which the township trustees tried to regulate with local zoning.

Jenkins said he and the other trustees hope the cases will set a precedent that would establish the validity of township zoning laws in cases involving communications towers. In the meantime, he said, the Anderson Group deal might.

``We're not interested in having the whole township stuck with cellular towers,'' Jenkins said. ``But our point is, we don't have the ability to absolutely preclude these towers, and if we do want to fight them, we have to do it through lawsuits. And the law is unsettled.''

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