Justices say new cell tower can be built

By Kyla Asbury | Apr 28, 2015

CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that a new cell phone tower can be built in Big Chimney area.

Clint Casto, who owns property 156 feet from the site of the approved cell phone tower, appealed to the State Supreme Court to attempt to halt the construction of the tower so close to his property.

In the first order, which was entered on April 30, the circuit court denied Casto's petition for a writ of certiorari challenging the Kanawha County Commission's Jan. 9, 2014, order denying his appeal of the site approval for the cell phone tower.

In a second order, which was entered on June 17, the circuit court denied Casto's motion for reconsideration of the April 30 order.

The Supreme Court ruled that the circuit court's order was appropriate under Rule 21 of the Rules of Appellate Procedure, according to the April 17 memorandum decision.

The planning commission held the first two public hearings on Beacon Towers' application for the cell phone tower on Sept. 11, 2013. A second public hearing was held on Oct. 9, 2013.

Following  the  hearing,  the  planning commission approved Beacon Towers' application for a new cell phone tower in the Big Chimney area.

Casto appealed the approval of the new tower to Kanawha County Commission and a third public hearing was held on Dec. 19, 2013, and, following  the  hearing,  the commission voted  to  deny  Casto's  appeal  and  affirm  the planning commission's approval of the new cell phone tower.

Casto then filed a motion to have Kanawha County Commission reconsider its decision to affirm the tower’s approval, which it did at its Jan. 9, 2014, meeting, and the commission left its affirmation of the tower's approval undisturbed.

The state Supreme Court believes that no reason exists to disturb the commission's decision and that Casto's motion merely sough to re-litigate the issue already decided.

"For the foregoing reasons, we find no error in the decisions of the Circuit Court of Kanawha County," the decision states. "We affirm (1) the circuit court’s April 30, 2014, order denying petitioner’s petition for writ of certiorari challenging respondent’s January 9, 2014, order denying petitioner’s appeal of the site approval for the cell phone tower adjacent to his property;  and (2) the circuit court’s June 17, 2014, order denying petitioner’s motion for reconsideration of its April 30, 2014, order."

Casto represented himself.

The commission was represented by Andrew T. Gunnoe and Michael W. Taylor.

W.Va. Supreme Court of Appeals case number: 14-0683

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