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Judge urges sides to keep talking in Pa. tower dispute

July 27, 2004|by DON AINES

chambersburg@herald-mail.com

CHAMBERSBURG, PA. - After hearing oral arguments Monday from attorneys for Chambersburg and the company that owns WCBG 1590 in a dispute over the stalled construction of a water tower, Franklin County Court of Common Pleas Judge Carol Van Horn had some advice for both sides.

"It appears that at one point the parties were vigorously working toward a resolution," Van Horn said. "Why don't you get back to the intense negotiations?"

The judge also told Thomas Finucane, the borough's attorney, that if the case reaches the point of an eminent domain proceeding, VerStandig Broadcasting Inc. may be able to show "there's a real basis for bad faith" in the borough's attempt to condemn the land on which WCBG's towers sit.

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First, however, the judge must decide who has jurisdiction, the Court of Common Pleas or the Federal Communications Commission.

In October 2002, construction crews were pulled from the site in the Chambers-5 Business Park after workers received shocks and minor burns from radio frequencies absorbed and re-radiated by the water tower, according to Borough Manager Eric Oyer. Construction of the 2-million-gallon tank, less than 200 feet from one of the broadcast towers, remains on hold.

In February, the borough council directed the municipal authority to begin an eminent domain proceeding to acquire the 8.2 acres of land owned by VerStandig Broadcasting. VerStandig responded by filing suit for an injunction to stop the borough and municipal authority from condemning the land, according to attorney William C. Cramer, who represented the broadcaster at Monday's hearing.

The borough then filed objections that the request for an injunction is premature because the authority has yet to take action to acquire the land, Finucane said.

"VerStandig's case is that the FCC alone controls the airwaves," Cramer said after the hearing. He said the borough is trying to acquire the land to turn off the signal and solve the re-radiation problem.

If control of the airwaves is the sole issue, Cramer told Van Horn the FCC has jurisdiction.

"Eminent domain is a state matter and we have not filed a declaration of taking" for the land, Finucane said Monday afternoon. VerStandig may not file preliminary objections until that declaration is made, he said.

Cramer agreed, saying he could not make the bad faith argument in court Monday because condemnation proceedings have not begun. The council's February resolution, however, provided enough grounds to seek the injunction, he said.

The February resolution by the council stated the borough's public purpose in taking the land was to complete and operate the water tower, as well as to provide a public recreation area and borough storage.

Van Horn said the borough could face claims it acted in bad faith in eminent domain proceedings if its sole purpose is to turn off the signal.

"We're not coming to the court saying we want a radio license," Finucane told the judge. "We're coming to you saying we have the power to condemn land," which is a matter for state courts, he said.

Van Horn said she will issue an opinion, but did not say when, again urging the parties to keep talking outside of court.

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