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County judge issues ruling in dispute over tower site

September 16, 2004|by DON AINES

chambersburg@herald-mail.com

CHAMBERSBURG, Pa. - A Franklin County judge ruled Wednesday in favor of Chambersburg and its municipal authority over whether it can proceed with condemnation proceedings on a radio tower site that has stalled completion of a water tower for almost two years.

M. Belmont VerStandig Inc., owner of the tower site, was seeking an injunction to prevent Chambersburg from acquiring its tower site in the Chambers-5 Business Park. The lawsuit was filed in March after the Chambersburg Borough Council authorized the municipal authority to acquire the site by eminent domain, according to Judge Carol Van Horn's ruling.

Van Horn ruled, however, that "any action by the plaintiff ... is premature without the defendant having actually filed an eminent domain action." Her ruling stated that any preliminary objections raised by VerStandig would have to wait until the borough files a declaration that it intends to take the 8.2-acre tract.

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Construction of the 150-foot water tower was halted in October 2002 when workers began receiving shocks and burns, according to the ruling. It was later determined that the water tower, located 193 feet from the nearest of four WCBG AM radio transmission towers, was re-radiating radio frequency energy, the ruling stated.

In oral arguments before Van Horn earlier this year, VerStandig's attorney, William C. Cramer, argued that the Federal Communications Commission has jurisdiction because it involves radio frequency interference and re-radiation exposure, according to the ruling.

Borough attorney Thomas Finucane argued the issue should be limited to the borough's power to condemn the property through eminent domain, according to court records.

The borough's stated reasons for acquiring the land are for developing a recreation area, storing borough equipment and providing "an essential supporting site to prevent re-radiation," Van Horn wrote.

"It may be that the defendants' reasons for threatening the condemnation of the plaintiff's real estate are dubious. It may be that the true reason for an eminent domain action is to eliminate the plaintiff's broadcast. However, until the defendants act, these issues need not be explored," Van Horn wrote.

The judge added that VerStandig's arguments that the FCC has jurisdiction and that the borough acted improperly could be argued if the borough begins condemnation proceedings.

Cramer said Wednesday he cannot argue that the borough is acting in bad faith, or that the FCC should have jurisdiction, until it files an eminent domain declaration in court. Cramer said he would have to review the ruling and consult with his client before commenting further.

"If a declaration of taking is filed, I presume they will raise the same issues," Finucane said.

Finucane said the borough might not try to acquire the land if a technical solution can be found to the re-radiation problem. He said the contractor is supposed to return to the site this year and attempt to complete construction.

"Why would we do a declaration of taking if the contractor completes the job without us having to acquire VerStandig's tract?" he said.

Van Horn wrote in her ruling that several attempts had been made by the borough and broadcaster to reach a settlement, including proposals to temporarily relocate the radio towers during water tower construction and moving the water tower to another site. Attempts had also been made to solve the re-radiation problem, she wrote.

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