With a tearful wife at his side, Dave Duckham went begging last week.

Duckham has 50 acres in Cashiers, has owned the land for 18 years, has nurtured it and planned its future, preparing for the day when he could subdivide 25 acres into an eight-lot, multimillion dollar development. When that happens, hot and crowded Ft. Lauderdale will become just a memory as Duckham moves permanently to his 3,700-foot-high Cashiers home.

His neighbor, who calls Jacksonville, Fla., home, has a different plan. He negotiated with a cell phone company and gave it permission to use to a small parcel of his land. A 250-foot tower is under construction, and it will be directly between Duckham’s Laurel Springs development and the mountain view.

“Laurel Knob would become only a pedestal for a cell tower,” Duckham told Jackson County commissioners. “I’m asking, you could say I’m begging, for a complete cell tower ordinance.”

Several adjacent property owners accompanied Duckham to the meeting. They and Mary Duckham explained that the land is residential and simply not the right place for a cell tower. Duckham, an architect, vowed that he’d do whatever it took to prevent the cell tower from going up.

“I would risk everything monetarily to prevent this,” he said as discussion turned on whether a cell tower moratorium would be legal.

Jackson County has no cell tower ordinance, no type of land-use plan and no zoning. The cell tower company, accordingly, has done nothing illegal. so far they extended the road and cleared trees and dirt for the tower pad. That fact worried county attorney Raymond Large.

“We could pass a moratorium tonight. I’ll do the work, you’ll (the county) pay the money. Then we could sit down and negotiate with the people building the tower and everything may be hunky dory,” said Large, who gets $125 per hour for handling the county’s legal work. “But we’ll probably have a lawsuit.”

Commissioner Stacy Buchanan, however, suggested that the county take Duckham’s offer seriously. In a work session before the meeting, most commissioners seemed to agree that a cell tower ordinance regulating height, co-locations, landscaping, camouflage, and other aspects is needed. Several nearby counties have similar ordinances, and commissioners vowed last week to begin developing one.
“Could we give our attorney the ability to look into a hold-harmless agreement, something that wouldn’t put the taxpayers at risk?” Buchanan asked.

Large said it was possible, the Duckhams agreed, and a motion was approved 4-1 instructing Large to determine if the county could pass a moratorium and then have the Duckham’s liable if it led to any kind of lawsuit. If the attorney finds Duckham is able to assume liability, if the amounts of liability are determined and documents are signed, commissioners said they would then consider a short-term moratorium.

“That’s one hell of a motion,” Large said.

Denton was the lone dissenter, saying he had a tremendous concern about the moratorium’s legality.

Eddie Madden, a real estate broker accompanying the Duckhams, said the amount of work already completed by the cell tower construction firm was less than 75 percent of the total cost of the project.

He cited a legal precedent known as vested rights, which he said stipulates that the company’s rights to continue the project are not established until 75 percent of it is completed. If a moratorium is filed before then, he believes the county could win a lawsuit to prevent construction. Large agreed that the amount of work already done by the cell company would likely be a factor if the issue goes before a judge.

Denton and the other commissioners now seem committed to developing and enacting a cell tower ordinance. It remains to be seen how it will affect the Cashiers controversy.

“We may be too late for your cell tower, but we may be able to do something for others,” Denton said.
The county will hold a public hearing July 9 to invite comment on cell towers and a possible ordinance. Holding a public hearing should work in the county’s favor if a moratorium or ordinance is challenged in court, Large said.

Madden said no one wanted to exclude cell service from Cashiers or anywhere else. Real estate broker Tom Wilson agreed, but he said that is why this is going to be a difficult issue to resolve.

“We’ve got to find a way to balance the needs of cell phone users in the mountains while protecting our beautiful mountains,” Wilson said.

For the Duckhams, only one resolution will allow them to finish their dream.

“If this happens, I don’t know what would happen to plans to bring my career here ... what would happen to my development,” Dan Duckham said. “It is my worst nightmare.”

 

Home
The Smoky Mountain News