Civil action seeks tower discussion information; temporary injunction sought

A Sperryville resident who sent a Virginia Freedom of Information Act (VFOIA) request to the Rappahannock County School Board two weeks ago filed a civil petition in circuit court this Monday (Jan. 5) to compel the board to comply with the request.

The plaintiff, Eric Tollefson, also filed a motion for a temporary injunction that seeks to delay the board’s decision — expected at the board’s next monthly meeting Tuesday (Jan. 13) — on leasing school property to a company that has proposed to build a cell tower near the high school.

Schools ask for
7 more days, $400

A letter from RCPS superintendent Donna Matthews delivered to counsel just before 5 p.m. Friday (Jan. 9) asks Tollefson for additional seven days and a $400 cost-covering deposit, citing provisions in the VFOI Act for both. Click on the letter image to see the PDF.

Both actions are on Circuit Court Judge Jeffrey W. Parker’s docket in Rappahannock for 10 a.m. Monday (Jan. 12), a day before the school board’s meeting.

Objections at public hearings and other school board sessions since last June have come from parents and others who question the safety — primarily of microwave transmissions — of a tower on school property. The FOIA request by Tollefson, a county taxpayer for the last two years who doesn’t have any children in Rappahannock public schools, ostensibly seeks what neither the school board nor prospective lessee Community Wireless Structures (CWS) of Arlington have yet revealed: the terms of the lease. It also seeks all related written, emailed or closed-session meeting communications among board members and the company.

“The problem is the school board has not even shared with members of the public the details of the technologies being considered for installation on the tower, which could be a matter of public health and safety,” Tollefson emailed last week (he has since declined to comment further on the advice of his attorney, David L. Konick. “I am very shocked at the limited amount of information that has yet to be shared — it doesn’t make sense.”

Tollefson’s petition alleges that the school board violated the state’s Freedom of Information Act restrictions on what can be discussed in closed session, and how the subject of closed-door discussions must be publicly announced beforehand.

Aside from matters involving pupils and personnel, typically closed to the public throughout Virginia, another permitted private discussion topic, in Virginia law, is so-called procurement contracts involving the expenditure of public funds. In the first of eight counts of alleged VFOIA violations by the board, for example, Tollefson’s petition points out that the proposed contract with CWS involves no expenditure of public funds; the funds (an estimated five-figure annual fee) would in fact flow the other way, from the company to the school board.

The suit points out other irregularities — characterized as violations of VFOIA — in the closed-door sessions of the board from July through December, including one in which the board’s minutes say the motion to go into closed session “to discuss pupil, personnel and personnel matters [sic]” was duly made and recorded and was followed by the board’s certification that “only personnel and legal contracts were discussed in closed session.”

“The CWS . . . Lease raises a number of public health and safety concerns because of the close proximity of the proposed Cell Tower to the Rappahannock County High School,” the petition states. “including but not limited to the undisclosed mitigation plans for the potential health and public safety issues that are involved regarding possible harm to students, the faculty and staff at the Rappahannock County High School that could result from the unnecessary continuous long term close-proximity exposure to undisclosed source levels of various radio frequency and microwave radiations, as well as, potentially other electronic emissions.

“None of these issues has been aired in public because the Board has steadfastly and unreasonably refused to release to the public any detailed information about the proposed CWS Cell Tower Lease and related facilities,” it says.

Former school board member Ron Makela said Monday he’d analyzed the amount of time school boards in the area spent in closed session, based on the times recorded in meeting minutes — and found that Rappahannock’s school board was by far the leader in closed-door meeting duration.

“Culpeper had 20 meetings last year . . . and were in closed session for five hours and 40 minutes,” he said. “Madison had 20 meetings, went into closed session for six hours and six minutes. Rappahannock had 21 meetings, and the total time spend in closed sesssion was 29 hours and 13 minutes.”

“Transparency is what it’s about,” Makela said. “You know, the school board’s meetings are never controversial; there’s never any discussion amongst the participants. They tend to do that all behind closed doors. It’s why nobody goes to school board meetings anymore, it’s so boring. The supervisors’ meetings are interesting at times because there is discussion.

“Nobody wants to see them fined thousands of dollars,” Makela said, speaking of the potential penalties for VFOIA violations. “Everybody just wants them to start playing by the rules.”

After Tollefson’s petition and motion for injunction were filed Monday, no school board member would comment on the subject. School board attorney Rodney Young of Staunton did not return a voicemail asking for comment.

Tam Murray, a principal with CWS, said Monday he hoped his company could work something out with the school board.

“My hope is the school board will proceed,” said Murray, who declined to specify the contract terms, noting “it’s still a negotiation, it’s not a signed contract.

When AT&T proposed and eventually received permits to build a similar 199-foot tower at the high school property four years ago — and then abandoned that and two other new 199-foot tower projects approved for Woodville and Sperryville — “it made sense” for CWS to step in, Murray said.

He said CWS had been interested in providing cell infrastructure in Rappahannock County as early as 2009, but “backed off” when AT&T began pursuing the permits, which were approved after nearly a year of board of supervisors and planning commission hearings. (In AT&T’s case, the school board did not become involved until later in the process.)

“The infrastructure will go somewhere,” Murray said, “It made sense for the county to benefit from it. In terms of safety, the American Cancer Society, the International Institute of Electronic and Electrical Engineers, the World Health Organization and other independent organizations all agree . . . if you’re on the ground and 150 feet from a wireless structure, you’re safe. There’s more emissions from your garage door opener and your baby monitor and your microwave oven than from a cell tower.”

Murray said CWS, which builds only the tower and leases antenna space to carriers AT&T, Sprint, T-Mobile and Verizon — decided on the school property because in such cases, where another company has received permission to build an almost-identical project but then abandoned it, the subsequent approval process “tends to go better.” CWS would have to reapply for the permits, and Murray said it has considered also reapplying for the Sperryville and Woodville tower permits.

“I don’t have a contingency plan,” Murray said, asked if the high school tower could go elsewhere. “I just assume that something that was approved, we would essentially submit an identical application as was submitted four years ago. . . . We spent quite a bit of time in meetings and reviewing a draft contract and negotiating serious points, and . . . this current development is just coming out of left field, as far as I can tell.”

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