Railroad subsidiary, town fight over cell tower

Granted, Gene Cohen is no suburbanite. The former Philadelphia Common Pleas Court judge lives and works in the city, where lots of views are marred by tall structures.

But that's not why he has taken the case defending a Georgia company's right to build, without local permission, a 195-foot-tall communications tower a quarter-mile from Valley Forge National Historical Park.

His reasons range from the uniqueness of the case - it is the first time a municipality has sued to stop the four-year-old CitySwitch L.L.C. from building a tower - to his not understanding why Schuylkill Township has gone to court over the matter.

There certainly isn't an aesthetic issue, Cohen asserted, noting that the proposed tower would sit on 2.56 acres owned by the Norfolk Southern Corp. - along the railroad company's tracks and next to the Valley Forge Sewer Authority treatment plant.

"Obviously, this is not an attractive landscaped area . . . between the freight cars and the sewage trucks," Cohen said. "And they're complaining about this tower?"

Yes, Schuylkill Township is complaining – in Chester County Court, specifically, where it filed a lawsuit in December after CitySwitch started constructing the tower despite the township's refusal to issue a building permit for it.

"It really rubbed me the wrong way," said Norm Vutz, supervisors chairman.

But out of respect for a judge's suggestion that both sides try to negotiate a settlement, the township Board of Supervisors unanimously agreed last night to try mediation, Vutz said.

Foundation work began in the fall. The tower is lying unassembled on the ground at the site, which is zoned for light industrial and known as Perkiomen Junction.

In the event CitySwitch erects the tower before any court decision on the lawsuit is made, the complaint also asks for an order directing it to be taken down.

CitySwitch, owned by Norfolk Southern and a number of other investors, builds communication towers for railroad companies in railroad rights-of-way and leases space on those structures to other commercial users. Cohen, the lawyer representing CitySwitch, contends that state utility and federal communications laws exempt CitySwitch from local land-use regulations.

Township Solicitor William J. Brennan said Schuylkill Township did not object to those exemptions for railroads. It just doesn't think CitySwitch qualifies for them.

"They are not a railroad," said Brennan, a partner at the firm Butera, Beausang, Cohen & Brennan P.C. "What they are doing is attempting to use the protection that's afforded to a railroad so they might be able to establish wireless-communication towers in areas where they might not otherwise be permitted."

If CitySwitch prevails, Brennan said, other municipalities should be concerned "with the precedent that may be set."

Of the nearly 30 towers CitySwitch has built, only one is in the Philadelphia region - in East Whiteland Township, said the company's president, Robert Raville. He said the Chester County community, three miles southwest of Schuylkill Township, issued his company a special-use permit last year without controversy. Township Manager Terry Woodman said the tower was in a relatively remote area.

That Schuylkill Township has taken CitySwitch to court is "bizarre," Raville said in a phone interview from Atlanta.

"We do these things in 22 different states; we're dealing with all sorts of municipalities," he said. "Schuylkill will forever stand out."

Among those applauding the township's aggressive stance is Dan Reese, whose concerns about the tower - specifically, what it would land on should it ever fall - are as a sewer authority board member and a resident of the nearby Meadows at Valley Forge.

"This might sound cliché, but move it on down the line," Reese said.

The development area's zoning requires a three-acre minimum lot size and limits heights to 35 feet.

Vutz said his biggest concern was keeping the tower short enough so that it would not land on houses or sewer authority equipment if it fell.

CitySwitch is exempt from local zoning regulations under the Pennsylvania Public Utility Code, said Cohen, who is now with the law firm Montgomery, McCracken, Walker & Rhoads L.L.P.

He has filed a counterclaim in U.S. District Court in Philadelphia, contending that the township's denial of CitySwitch's application for a building permit in June violated the Federal Telecommunications Act of 1996. The act says "the regulation of the placement, construction and modification of personal wireless-service facilities by any state or local government . . . shall not unreasonably discriminate among providers."

In a closed meeting with lawyers on Jan. 20, U.S. District Court Judge Berle Schiller urged mediation.

Cohen, who presided exclusively over business cases during his time on the bench from 1988 through 2005, said today that he was gratified to hear that Schuylkill Township officials were willing to try that approach.

"We expect there is a solution to our dispute, short of rule or ruin, where we can amicably coexist," he said.