Judge sides with city in 8-year battle over cell tower, saying owner needs approval

May 2—The city of Santa Fe claimed a victory last month when a state district judge ruled in its favor in an eight-year legal battle with a local company accused of building an 80-foot cell tower on its property without a permit.

However, the fight is likely to continue, and with it, the tower's presence.

Albert Catanach, president of internet service provider NMSurf, said he plans to contest the recent ruling. It requires him to go back to the city for approval of the tower, which stands on his business's property in a midtown neighborhood near Salazar Elementary School.

"This could go on for another eight years, probably," Catanach said.

The dispute began in 2016 after NMSurf, previously known as Computer Network Service Professionals, constructed a tower behind the business at 1308 Apache Ave., which abuts a residential area.

City regulations require a tower to be set back from property lines by the same distance as its height, meaning an 80-foot tower could stand no less than 80 feet from the property line. But a proposal for the NMSurf tower called for it to stand just 16.8 feet from the company's back fence, The New Mexican reported in 2016.

The company had first notified the city of its plans to build the tower in a letter in 2015.

The city maintained NMSurf would need a waiver from the setback rules; the company argued it didn't need a waiver due to both an existing 77-foot rooftop tower the new tower would replace and new Federal Communications Commission rules aimed at expediting construction of telecommunications infrastructure.

The company proceeded to build the tower, refusing to heed an order from City Hall to halt construction, The New Mexican reported. The city sued NMSurf and Catanach in 2016, and he countersued.

The city Planning Commission in 2017 unanimously denied the company's request for a waiver for the setback requirements.

In an April interview, Catanach said the Planning Commission had acted outside its authority by denying the waiver.

"They based it on unsubstantiated evidence that it was unsafe when it's totally the opposite," he said.

Several neighbors who attended the 2017 Planning Commission meeting had objected to the tower, citing safety concerns. They said they feared the damage the tower could cause to neighboring properties if it fell.

Catanach said opposition to the tower stems from anti-wireless activists.

"There's wireless activists in the city that believe wireless causes cancer, so they do anything to try and get you to not have wireless in the city," he said.

Catanach filed a lawsuit against one of his neighbors, Andrea Cypress, accusing her of making "false, defamatory and injurious" comments at the Planning Commission meeting as she voiced safety concerns. He also asked a judge to issue a civil restraining order "to prevent Defendant from speaking falsely about him in public forums, to the newspaper, and possibly others," court documents say.

A judge denied the restraining order and granted a motion from Cypress' attorneys to dismiss the case in 2017.

Cypress declined to comment for this story.

Catanach has maintained federal telecommunications law allowed NMSurf to construct the tower and has alleged the city is in violation of federal law. The civil case between the city and NMSurf eventually landed in the New Mexico Court of Appeals in 2020, which sent it back to the First Judicial District in late 2022.

Much of the dispute centered on a federal law regarding telecommunications permits and the city's timeline for denying a permit for NMSurf, Assistant City Marcos Martinez said.

"In the applicant's view, they were able to avail themselves of an expedited federal process, which we, the city, contended never applied," Martinez said. "And the District Court and the Court of Appeals eventually agreed with us that this expedited procedure doesn't apply to them."

The Court of Appeals remanded the case to the District Court to determine whether the city had properly complied with part of the federal Telecommunications Act, according to court documents.

At an April 4 hearing, Martinez said a judge ruled the city had validly denied the company's application.

State District Judge Bryan Biedscheid issued an order April 25 denying a request by Catanach and NMSurf for a permit under federal telecommunications law and remanded the decision to the city to "process the Applicant's application according to the City's Ordinances governing telecommunication facilities applications and any required Planning Commission approval."

City Attorney Erin McSherry said the city's understanding of the case is the company will now have to go back to the Planning Commission to request a permit for the tower. If the request is denied, the company could appeal to the City Council. If the council also denied NMSurf a permit, that could pave the way for the tower's removal.

Biedscheid wrote the city had satisfied federal requirements by denying the application in writing.

"The April 28, 2015 letter in the record between the Applicant and the City show that the City notified the Applicant, NMSURF, that the City could not approve its application unless and until the Applicant satisfied the City zoning rules on set-back requirements," the order said.

County Commissioner Anna Hansen, who is president of the Casa Alegre Neighborhood Association that includes residences near the NMSurf property, said she supported the judge's decision. The tower affects surrounding neighbors, who had not been consulted about its construction, she said.

"These large cell towers, it would be better if they were not right next to residential neighborhoods," Hansen said.

McSherry said the company could appeal Biedscheid's order, but she did not know of any grounds for an appeal.

"We have no reason to believe they're going to appeal it. We think they'll follow the District Court order," she said. "We don't know of a basis for appeal."

Catanach said Thursday he does not agree with the ruling and continues to believe the city is required to grant him a permit under federal law. He said he plans to contest the decision in the Court of Appeals.

"We're going to appeal it again, and we're confident that we're going to win," he said.