Judge to rule soon in Sunset Hills’ suit seeking to stop construction of tower

County must obtain city’s OK to build tower, suit contends

By Mike Anthony

A St. Louis County Circuit Court judge said Friday he would rule soon on Sunset Hills’ lawsuit that seeks to halt the construction of an emergency communications tower on South Lindbergh Boulevard.

Sunset Hills filed the lawsuit Sept. 4 against St. Louis County seeking a temporary restraining order, a preliminary injunction and permanent injunction prohibiting the county from constructing the emergency communications tower behind the South County Health Center, 4580 S. Lindbergh Blvd.

The site is owned by the county.

Sunset Hills City Attorney Robert E. Jones and Associate County Counselor Cynthia Hoemann appeared Friday before Circuit Court Judge Robert Cohen.

As proposed, the emergency communications tower would be one of roughly 25 towers being located throughout the county as part of St. Louis County’s new emergency communications network.

County voters overwhelmingly approved a one-tenth of a cent sales tax in November 2009 to fund the new emergency communications network. The new system will allow emergency responders to meet a Federal Communications Commission requirement to narrow their frequency bands.

In its suit, Sunset Hills claims the county lacks the authority to construct and operate the tower within the city without approval from city officials. But St. Louis County contends it does not need the city’s approval to construct and operate the tower.

“The city’s municipal code requires the issuance of a conditional-use permit (CUP) by its Planning and Zoning Commission prior to the construction of a new telecommunications tower, and the municipal code prohibits the construction of a new telecommunications tower that would exceed 100 feet above ground level …,” the city’s suit states.

On Dec. 5, David “Duff” Barney, executive director of the St. Louis County Emergency Communications Commission, and Russell Been, of Cellective Solutions, appeared before the Planning and Zoning Commission seeking a CUP for the 190-foot-tall tower at the health center. Besides the tower, the proposal included a 12-foot-by-24-foot prefab building with a generator and an above-ground propane tank.

After the public hearing, the Planning and Zoning Commission voted unanimously, with one member absent, to recommend denial of the CUP for the tower.

On Dec. 11, the Board of Aldermen conducted two readings of an ordinance to approve the CUP request, but voted 7-1 to table final consideration of the measure to give county officials time to review other possible sites. Then-Ward 3 Alderman Stephen Webb was opposed.

On April 23, aldermen voted unanimously to return the county’s CUP application to the Planning and Zoning Commission.

In its response to the suit, St. Louis County notes a building permit for the tower has been issued by the county. The St. Louis County Emergency Communications Commission is ready to start construction of the tower, which is vital to public health and safety, according to the county.

By issuing itself a building permit for the tower, Jones said the county has decided to proceed without completing the CUP process. He contended county officials “skipped a step” in issuing a building permit for the tower without obtaining a CUP.

The city contends taxpayers would be better served by the county selecting another site or placing its equipment on a Fox 2 TV tower near Lindbergh High School — roughly 2,500 feet from the site of the health center. City officials estimate the cost of placing the county’s equipment on the Fox 2 tower at $51,000 — much less than the cost of constructing a new tower.

But Hoemann said the county is not required to consider other sites nor does it have to obtain the city’s approval to construct the tower.

“County is entitled to judgment on the pleadings because the overriding need for timely completion of the emergency communications system, which is vital to public health and safety for all residents and other members of the public in St. Louis County, overrides and completely overshadows the city’s interest in regulating county’s communications towers,” according to the county’s response to the lawsuit.

County officials did everything they could in an effort to accommodate Sunset Hills officials, including considering sites near City Hall that did not pan out, according to Hoemann.

To be a good neighbor, the county agreed to seek the CUP from the city, she said.

However, in agreeing to seek the CUP, the county did not waive its position that it does not need the city’s permission to construct the tower, Hoemann said.

As for locating its equipment on the Fox 2 tower, she said such an arrangement would be cost-prohibitive for the county.

The monthly rental payments and the initial $51,000 cost would be financially unfeasible. By constructing the tower at the county-owned health center site, the county would have a one-time cost and no monthly rental payments, Hoemann said.