T-Mobile sues Olathe for denying tower request

BY: Mario Sequeira, Staff Writer

Cell phone company T-Mobile filed a lawsuit Feb. 12 in U.S. District Court, Kansas City, Kan., against Olathe, complaining the city denied T-Mobile permission to build a communications tower.

According to the lawsuit, filed by the Overland Park office of Lathrop and Gage, T-mobile and Olathe staff met June 22, 2006, to discuss T-Mobile’s plan to build a 60-foot communications tower on the property of Gathering Place Pentecostal Holiness Church, 16515 W. 127th St.

The company and church agreed to erect a cross-shaped tower to blend with the church building.

City staff rejected the plan. The lawsuit said one staff member described the design as “blasphemous,” and that staff said they “would find a reason to deny the proposed tower” but did not give reasons for the denial.

In September, T-Mobile submitted a building permit application, which city staff rejected, describing the tower as a “monument sign” that exceeded height limits. City staff then set new criteria for the tower.

T-Mobile appealed to the Olathe Board of Zoning Appeals, which Jan. 11 described the tower as a “sign” requiring a sign permit.

T-Mobile submitted a sign permit application Jan. 24, which city staff denied Feb. 6, saying the city’s Unified Development Ordinance did not permit signs in the church’s Rural 1 zoning.

The lawsuit quotes the UDO as defining a monument sign as “a freestanding sign having a solid appearance and a low profile, normally consisting of a face and base. Said sign may be constructed with stone, concrete, metal, routed wood planks or beams, brick or other materials consistent with the building the sign is representing.”

The lawsuit said: “The UDO’s sign ordinance was neither designed nor intended to regulate the promulgation of telecommunications towers within the City of Olathe.”

The lawsuit continued: “The definition of ‘sign’ placed on T-Mobile’s application is so broad that, using it outside of its intended scope would allow the City to place arbitrary standards on virtually any structure otherwise allowed under the UDO.”

T-Mobile said the 1996 Telecommunications Act, passed to boost competition in the telecommunications industry, gives the company the right to place or build facilities needed to provide coverage for customers.

By preventing T-Mobile from constructing a tower “within a reasonable period of time after its requests were duly filed” and not providing that decision in writing, Olathe violated the act, the suit said.

Olathe’s actions “are an attempt to unreasonably delay and impede T-Mobile’s right to construct an effective personal wireless network …” the suit said.

T-Mobile seeks a judgment directing Olathe to issue the permits necessary to build a tower and pay court costs.

T-Mobile also asks the court to find that the 60-foot tower is permitted in an R-1 zone.

Lathrop and Gage had not served the lawsuit on Olathe by Tuesday, City Attorney Tom Glinstra said.

City spokesman Tim Danneberg said commenting on the lawsuit could compromise the city in court.