oct 8, 2011 cell tower appeal response by mcps board of education

8/3/2019 Oct 8, 2011 Cell Tower Appeal Response by MCPS Board of Education

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MARYLAND STATE BOARD OF EDUCATIONJANIS LINK SARTUCCI, ET AL.

APPELLANTSv .MONTGOMERY COUNTY BOARDOF EDUCATION,

RESPONDENT*

MEMORANDUM IN SUPPORT OF COUNTY BOARD'S RESPONSE ANDMOTION TO DISMISS

The Board of Education of Montgomery County ("County Board"), Respondent,submits the following m emorandum in support of its Response and M otion to Dismiss:

IntroductionThis appeal purports to be a challenge to the June 16, 2011 action of the County Board

granting utility easements at six (6) public school sites to Comcast of Potomac, LL C, a/k/a/Comcast Cablevision of Maryland, LLC. Appellants' three page letter of appeal dated July 15 ,2011 and their recent Opposition do not ev en address the subject of utility easements and theCounty B oard's right to grant such limited property rights across its real estate. The Co untyBoard's actions therefore remain un-rebutted and must be upheld. The vague, unsubstantiatedand conclusory allegations contained in the appeal attack the und erlying lease agreements, notthe easements. T he claims are untim ely, fail to state a claim, lack merit, and should bedismissed.

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Appellants' Opposition and Cross-Motion for Sum mary R eversal of Respondent'sAction simply h ighlights Petitioners' failure to state a timely claim un der the Educ ation Article.Appellants' Cross-Motion for Summary Reversal must be rejected since the appeal proceduresof the State Board do not provide for such a procedure.1. Only one of the Appellants arguably presents facts alleging legal standing.

In their Opposition, Appellants correctly note that to have standing in an administrativeappeal a person must show that he/she is aggrieved by the final decision. "In order to be anaggrieved party, a person ordinarily must have an interest such that [he/she] is personally andspecifically affected [by the agen cy's final decision] in a way that is different from the generalpopulation." Krista Kurth, et al. v. Montgomery Cou nty Board of Education, MSB E OP . No1 1 -38 (20 11) at p. 5 , citing Sartucci v. Montgomery Board of Education, MSBE OP. No 10-1(2010). By their ow n adm ission, Appellants only present factual allegations that one of theirmem bers, Appellant Kerchaert, lives close to one of the six (6) named school sites over whichthe County Board granted a utility easement on June 1 6, 2011. 1 Even her standing is predicatedon an Assessment Board order regarding the location of a cell tower, not on the presence of aneasement which was the subject of the County Board decision. So, even this one Appellantlacks standing insofar as the subject matter of this appeal.2. Appellants' argument that the local board lacks authority to lease its real property

to a private entity is not properly before the State Board.The County Board's actions of June 16, 2011, which the Appellants challenge in this

appeal, were approvals granting utility easements to a wireless telephone/cable com pany(Comcast). Those utility easements were not different from hund reds of other utility easements

She also alleged that she ha d a child who attended Captain James E. Daly Elementary School, a nearbyelementary school.


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that the County Board has granted to various utility companies (e.g., BGE, PEP CO, V erizon,W ashington Gas Light C ompany , etc.) over the years, as previously pointed out. Curiously,however, Appellants' letter of appeal mad e no m ention of the challenged utility easements [seeRespondent's Memorandum in Support of Motion to Dismiss, p. 5] and neither doesApp ellants' Opp osition to the Motion to D ismiss. It is patently obvious that App ellants aretrying to use the June 16, 2011, utility casements to bootstrap an attack on the un derlyingtelecommunication leases which were en tered into more than three years ago (between 2005and 2008). Any appeal seeking to challenge those leases as Appellants do, must be rejected asuntimely.

Moreover, since the specific actions which A ppellants challenge in this appealare the utility easements approved on June 16, 2011, the only issue before the State Board iswhether the Co unty Board's approval of such utility easements was arbitrary and un reasonableor illegal. Appellants bear the burden of proving either arbitrariness or illegality of the utilityeasements, but they have made no such showing, preferring to belatedly address an entirelydifferent topic. The Coun ty Board g ranted utility easements across its property, as it has donebefore to telephone, electric companies, water companies, and other private concerns. Therewas nothing illegal in the action of the County Board on June 16, 2011. On its face, Appellantschallenge of the utility easements m ust fail.3.f the State Board examines the underlying telecommunication leases authorized

by MCPS policy, the County Board's leases are consistent with Maryland law.

By using the June 16 utility easements to bootstrap an attack on the underlyingtelecommunication leases, Appellants attempt to argue that the telecomm unication leases areillegal. They base this claim on 4-114 of the Education Article which requires a local board to

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hold all school property "in trust for the benefit of the school or school system." They rely ontwo attorney general opinions that viewed leases of public school property with disfavor. Inone instance, the Attorney General concluded that a local board had doubtful authority topermit the construction and use of a building on school property by a private day care companyfor an indeterminate length of time. 2 Noting that the construction of a building b y a privatecorporation for its own use would require a long-term commitment from a local board, 3 theAttorney General expressed doubt about it. Similarly, in a 2 006 opinion, the A ttorney Generalagreed with counsel for the Harford County Board that a 99 year lease of school property to aprivate corporation was doubtful based on the School Board's obligation to hold property intrust for the benefit of the pub lic schools.`

Neither legal opinion supports Appellants' radical position that a school boardcan never lease any property under any circumstances even to facilitate water and electricity tothe property. In fact, there is strong legal authority supp orting the discretion of a local boa rd tolease property. In 1991, the Attorney General addressed whether the Anne Arundel CountyBoard of Education could lease a portion of school property to a private special educationschool so that it could construct a building.' The A ttorney G eneral concluded that a lease ofschool property to a non-public educational institution that provides services to specialeducation students, many from Anne Arundel County, "might well be consistent with the localboard's trust obligation." 6 The A ttorney G eneral found that such a lease would not violate alocal board's duty to hold prop erty in trust:

2 76 OP. A tt. Gen. 147 (February 1, 1991)3 Id. a t 1514 91 OP. of A tt. Gen. 33 (January 30, 2006)5 76 Op. of Att. Gen. 190 (July 12, 1991)6 Id. at 192 4


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In general, a trustee may lease trust property if the lease is reasonable,considering among other factors, 'the purposes o f the trust' and 'thenature of the property and the uses to which it may advantageouslybe put.' Citing Restatement (Second) of Trusts, 189, comm ent B (1959).

Consistent with the A ttorney General's opinions, considering the "purposes of the trust"and "the nature of the property and the uses to which it advantageously be put," leases totelephone companies do not per se violate a trustee's obligations. It is surely within thediscretion of a C ounty B oard to lease a relatively sm all portion of school property(approximately 600 to 800 square feet) to a telephone company for a monthly rental that wouldresult in considerable income benefiting the public school system. Moreover, the lease termswere relatively short (5 years, plus renew al) and provided for early termination if the lesseefailed to perform their contractual obligations. Such use of trust property is consistent with thefiduciary duties expected of a trustee managing real property. 7 Thus, there is no legal supportfor Ap pellants' allegations that the leases of school property for cell tower use violated theschool trustees' obligations, assuming that the State Board ev er reaches that issue.

More significantly, the Attorney General has concluded more recently and morespecifically that the current education law gives a county board the authority to lease schoolproperty to a telephone com pany. In a 2007 letter of advice to a Baltimore County senator,Assistant Attorney General Robert A. Zarnoc h, counsel to the General Assem bly, advised thatthe Legislature's 2004 amend ment o f 4-114 perm its a private entity to hold title to publicschool property if contractually obligated to transfer title back to the c ounty board. See 4-114(c)(1). The respected op inion by the Legislature's principal legal counsel bolsters the

See also Bogert, Trusts (6 th Ed.) 1987, 101 for discussion of the trustee's duty to m ake trust property productiveand earn income.5


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conclusion that such leases with telephone companies are authorized. A copy of the May 30,2007 letter of advice is a ttached as Respond ent's Exhibit 3.4.ppellants' argument that the Telecommunications Act of 1996 does not pre-emptMaryland law is misleading and, in any event, is beyond the jurisdiction of theState Board.

Appellants correctly quote 704(a) of the TC A and the sections dealing with thepreservation of local zoning authority "of a state or local go vernme nt or instrumentalitythereof." Howev er, the quote is misleading because the TC A then limits the regulation by suchstate and local governm ents over "the placement, construction, and modification of personalwireless service facilities" and prohibits such entities from unreaso nably discriminating oradopting procedures that have "the e ffect of prohibiting the provision of personal wirelessservices.. ." There is no question that the county board is a governmental entity and qualifiesat least as an instrumentality of either the state or local gove rnment.

App ellants contend that Maryland boards of education are not subject to therequirements of the TC A and that federal law w as not intended to apply to public schoolproperty. IIowever, Appellants' reliance on the Second Circuit's decision in Sprint Spectrumv. Mills, 28 3 F.3 r d 404 (Second C ir. 2002) to support their misleading argum ent is misplaced.App ellants cite the decision to argue that the TCA does not prevent a school system frombanning cell towers on school property and, therefore, the premise of the local policy waswrong. Even if the m otivation for the local Policy, adopted years ago, was based on aninaccurate view of the law, it is irrelevant to the validity of the Policy, belatedly attacked in thisappeal by the App ellants.

The factual background shows that the County Board purposely adopted atelecomm unications policy based on its authority to adopt rules and regulations for the conduct

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and management of the county public schools. ED, Section 4-108. That authorization includesthe capacity to manage school property, adopt procedures to evaluate requests to placetelecommunications transmission facilities on school property, and delegate to thesuperintendent the authority to grant defined and terminable leases for that purpose.

Moreover, the Sprint Spectrum case simply stands for the proposition that the TCA didnot prevent the school district from relying on its contract addendum to require a lower level ofradio frequency (RF) emissions from the telecommunications facility in order to be permittedon that school district's property. The court ruled that the school district was not attempting to"regulate" personal wireless services, but was merely acting in a proprietary capacity,managing its property and insisting on contract terms it had negotiated. The Court in SprintSpectrum found that the Ossining New York school district's contractual restriction on RFemissions was not preempted by the TCA in that specific instance. The decision does not m e a nthat the TCA will never operate preemp tively if a gov ernmental entity adopts policies orprocedures that have the effect of "regulating" personal wireless services. 8 Consequently, th eSprint Spectrum case cannot be read as controlling the telecommunication leases entered by theCounty Board. Moreover, there is no reason for the State Board to venture into questionsconcerning federal pre-emption and opine on legal matters beyond the State Board'sjurisdiction.5.ppellants' claim that Policy ECN violates Montgomery County law and themandatory referral process must be dismissed as not within the jurisdiction of the

State Board.

8 In New Y ork SMSA Ltd. Partnership v. Town of Clarkstown, 612 F.3d 97 (2010) the federal court held that atown ordinance preferring "alternate technologies" for wireless telecommunications facilities was imp liedly pre-empted b y the ICA. There is no presumption that state/local regulations and policies will not be pre-em pted.7


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App ellants veer further off course whe n they argue that a local Board Policy EC N,Telecomm unication Transmission Facilities, conflicts with Montgom ery County land use lawsand the mand atory referral process.`? They raise irrelevant, unconnected arguments when theyrefer to a special exception matter involving a telecommu nication company's request to place acell tower at Sligo Middle School. Non e of the arguments have any relevance to the CountyBoard's actions at its June 16, 201 1 meeting g ranting utility easements, and, in any event, theissues are beyond the jurisdiction of the State Board.

6.ppellants' Cross-Motion for Summary Reversal should be denied.Appellants answered R espondent's Motion to Dismiss by sub mitting what it called an

"Opposition to R espondent's M otion to Dismiss and C ross-Motion for Sum mary R eversal ofRespondent's Action." COMAR 13A.01.05.03 does not authorize the filing of a motion forsummary reversal. How ever, even if a type of summ ary judgment motion w ere possible,Appellants have not demonstrated they are entitled to judgment as a matter of law. Appellantshave presented no legal authority holding that the C ounty B oard acted arbitrarily or illegally ingranting utility easements to Com cast at the June 16, 2011 public meeting. The issues raisedby A ppellants are either irrelevant to the action being challenged (easem ents) or are outside thescope of this appeal. For these reasons, Appellants' Cross-Motion should be denied.

9 Article 28, 7-112 requires that projects for public improvements in the capital planning district must undergo amandatory referral process before the Maryland National Capital Park and Planning Commission.8


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CONCLUSIONAppellants have no factual or legal basis to challenge the June 16 County B oard

approval of utility easements at several properties it owns and h olds in trust. Appellantspresent no facts or arguments that the grant of these easements was improper or illegal.Appellants' vague, unsubstantiated, and unw arranted conclusions attacking the underlyingtelecommunications leases fail to state a claim, and certainly fail to state a timely claim .Appellants have not shown by a p reponderance of evidence that the County Board actedarbitrarily or illegally. Attempts to portray the County Board's Telecommunications Policy asviolating County law or conflicting with provisions requiring mandatory referral haveabsolutely no merit or relevance. Moreo ver, adjudication of such claims is not within thejurisdiction of the S tate Board.

For all of these reasons and those stated in the previously filed motion, the CountyBoard's Motion to Dismiss should be granted and Appellants' Appeal and Cross-Motion fo rReversal should be denied.

Respectfully Submitted,

Jud S. BreslerUV

Michael S. MolinaroCARNEY, KELEHAN, BRESLER,BENNETT & SCH ERR, LLP10715 C harter Drive, Suite 200Columbia, Maryland 21044301-621-5255

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oct 8, 2011 cell tower appeal response by mcps board of education

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