Radio towers get FCC construction extension

Opponents argue extension based on false pretenses, ask for reconsideration; zoning ruling coming in Feb.

Michigan-based Birach Broadcasting was granted a one-year extension until Nov. 26 to build four 411-foot towers for radio station WDMV on a rural piece of land 800 to 1,600 feet north of Bethesda Church Road near Johnson Drive.

Birach Broadcasting bought WDMV, operating 540 AM, in 1990-91, president Sima Birach Jr. told Hearing Examiner Lutz Prager during several days of testimony in October.

The station is based in Pocomoke City on the Eastern Shore. Soon after taking ownership, the company began looking for a new site for its towers so the signal would reach the Washington, D.C., area without interfering with existing radio stations and settled on the site on the highest point in Damascus.

The FCC granted Birach a three-year permit to build the towers specifically on that spot in November 2003. It normally does not grant extensions of construction permits, but Birach’s lawyer sent a letter to the commission arguing that the ‘‘rare and exceptional circumstances beyond its control” of the county’s six-month building freeze in the summer of 2005 prevented it from building the towers within the required time period.

Lawyer Bruce Henoch of Schulman, Rogers, Gandal, Pordy and Ecker wrote that the original zoning lawyer failed to produce the necessary work and was replaced in January 2005, thereby delaying the county application process.

‘‘On July 26, 2005, however, the Montgomery County Council took the highly unusual and unexpected step of issuing a resolution to freeze all zoning and planning activity in the county due to ongoing difficulties with a major residential project,” Henoch wrote.

The six-month freeze prevented the county from approving a required natural resources inventory of the property until March 2006, he wrote. The earliest hearing date available for a required special exception zoning permit was Oct. 6, 2006, he added.

‘‘Birach has expended hundreds of hours of labor and hundreds of thousands of dollars in furtherance of the proposed relocation,” Peter H. Doyle, chief of the Audio Division Media Bureau of the FCC wrote in granting the extension. ‘‘... We agree with Birach that Montgomery County’s imposition of a total freeze on all zoning and planning activity in the county constitutes a rare and exceptional circumstance justifying a waiver.”

However, the county’s zoning freeze had nothing to do with Birach’s delay in obtaining county zoning approval, nearby residents argue

‘‘The total freeze argument is one that is false,” lawyer Barry A. Friedman of Thompson Hine wrote in a petition to the commission asking it to reconsider the extension.

Friedman represents Damascus Residents for Responsible Tower Citing, a group of neighbors who have been fighting the project since it was first proposed as a seven-tower array more than three years ago.

His petition included an affidavit signed by Robert Hubbard, director of the county Department of Permitting Services, stating the freeze only affected the issuance of building permits in site plan zones.

‘‘Birach Broadcasting Corp.’s towers are not located in a site plan zone and because Birach has not applied for a permit to construct towers, the certification process required by the resolution would not apply to Birach,” Hubbard states in the affidavit.

At a hearing of the county’s tower committee last July, lawyer David Freishtat of Schulman, Rogers, Gandal, Pordy and Ecker was asked about the delay and replied, ‘‘Much of the delay was self-inflicted by counsel’s own failure to undertake due diligence necessary.”

Although the Damascus Residents for Responsible Tower Citing have participated in all local government processes related to the towers and fought the towers every step of the way, they were not informed of the FCC extension until after it was granted, which is a violation of commission rules, Friedman wrote.

‘‘We received the petition for reconsideration and it’s under review,” Hutton, of the FCC, said.

The hearing examiner is expected to issue his report on the zoning permit Feb. 19.

If the county denies the zoning permit, residents wonder whether Federal Communications Commission approval can override local zoning ordinances.

‘‘Our permit doesn’t overrule county zoning,” Hutton said. ‘‘Like a train, you need both pieces of track to make it work.”