Published 12:00 am Wednesday, May 10, 2006
Legal action taken in tower debate
By Tammy Leytham, George L. Jones
The Selma Times-Journal
A lawsuit against Dallas County on behalf of the City of Selma was filed Tuesday.
According to City Attorney Jimmy Nunn, the county is already in violation of Selma ordinance COS 013-00/01, which requires a permit to build wireless telecommunications facilities on city property.
The issue being argued now is if the property immediately beyond the courthouse’s steps is under control of the city.
“That’s the question to the judge that is being asked,” Nunn said. “Our attorneys are handling the initial stages now.
I don’t know how long the process will take. The judge could issue a preliminary injunction or it could be drawn out.”
The controversy between the city and county continues following Saturday’s installation of a 120-foot communications tower at the Dallas County Courthouse.
According to Probate Judge Johnny Jones, chairman of the Dallas County Commission, the tower was installed to “resolve problems we have with communications.”
It was purchased with money obtained from a 2004 federal grant, in conjunction with another grant providing funds for the equipment, radios and antennas, said EMA Director Brett Howard.
“The logical place for this is the 911 building,” Jones said. “But, the city said we couldn’t put it at the 911 building.”
The 911 building is located at 311 Dallas Avenue.
“The thing that troubles me so much is this is just a win-win for everybody,” Jones said. “The commission feels strongly that we have a strong moral obligation and a legal duty to ensure we have the best safeguards in place – for everybody.”
He said the county’s position was, is and will continue to be that “the tower has been erected for use by the City of Selma police, fire and for the benefit of the citizens.”
Dallas County Sheriff Harris Huffman Jr. expressed his support for the tower as well. “This tower is a lifeline to these officers out there in the field.”
As to the need, Howard reported concerns about problems with communication between officers from different law enforcement agencies – such as the sheriff’s department communicating with a volunteer fire department while at the scene of an accident. In addition, the tower will have a generator so that in the case of a power outage, communication between emergency response personnel will not be lost.
The city contends that county officials “violated the law” by not applying for a special permit, according to Mayor James Perkins Jr.
At the city council meeting Monday night, he called for the city council to support necessary legal action to remove the tower.
“As we deal with crime in our city, this action is definitive proof they (county officials) do not respect city government and break the law,” Perkins said. “If this is allowed, we will lose the ability to enforce the code with our citizens. I intend to let the legal process work. However, as I understand, this is an intentional violation of the law.”
The council Monday voted in favor of taking legal action by a vote of 5-2 with two members abstaining.
In a letter addressed to the Dallas County Commission, county E-911 director Richard Bean, Howard and Huffman, City of Selma Building Inspector Finis Harris ordered county officials to “stop, halt and discontinue” the tower’s installation until they sought a special permit from the city, citing the courthouse is within Selma City limits.
However, County Attorney John Kelly III said under state law, county officials exercise sole control and jurisdiction over the Dallas County Courthouse and other county buildings. Kelly backed up his argument by citing the case of Lane v. Zoning Board Adjustment of the city of Talladega
– a case in which the Alabama Court of Civil Appeals ruled that a city’s land use ordinances do not apply to the operation of a governmental function by a county governing body.
“The law is very clear as to the sovereign authority of the courthouse,” Jones said.
Harris was on hand Saturday morning in an attempt to stop the construction, and said he was presented with a letter from Jones saying he had no jurisdiction in the matter.
“I think (the city) doesn’t want the tower up at all because it’s in the historical district,” Harris said. “The county would have had to ask to be put on the city council agenda by the 10th, and they would appear before the council the 10th of the next month – unless they talk to the mayor and have a special meeting.”
Howard, Police Chief Jimmy Martin and two city officers were on site Saturday morning at the courthouse when the tower was being installed. According to Jones, everyone was “very professional” and there were “no issues.”
Huffman was also on site, along with two deputies, and said there “was no confrontation with anyone.”
Michael Kuhn owns Diamond K Tower Co., the firm used to construct the tower.
After going back and forth with both the city and county in the week prior to the tower’s erection, Diamond K went ahead with the work planned.
“The county gave us a letter stating that they would take responsibility and that they would pay for everything the city tried to put on us,” Kuhn said. “The city told us they would write us a letter saying they had authority and that we would need a permit, but they didn’t write us one.”
Kuhn said Huey Dyess, the man supervising Saturday’s work, called him after his crew was done Saturday and told him sheriff’s deputies were escorting them out of the county.
The city named Kuhn and Dyess in a subpoena and complaint served to them by Selma police officers Tuesday.
“We’re only sub-contractors on this job,” Kuhn said. “I had a sub-contractor who poured concrete Saturday, and he’s not being named. We’re actually working for Allcom Wireless, and they’ve had the job contracted with the county since August 8 of last year. I wish they could settle this without me because I’ve got a job to do. (Dyess) has six kids to take care of, and I’m going to have to pay him to go back over there.”
While the communications tower is up, it’s not currently operational, according to Howard.
“Most of the equipment is ready to be hooked up,” he said.