Soft Cell: Wireless Tower Agreement Dissolves Under Scrutiny

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A fatal flaw in a marketing agreement between the Albemarle County School Board and Milestone Development, Inc., a Virginia-based cell tower developer, has led to the agreement’s dissolution, according to division officials yesterday. The previously undisclosed arrangement came to light only a week ago and provides a window into a novel type of business relationship between developers and public entities in the current era of ever-increasing wireless demand.

In the “Master Marketing Agreement,” dated March 26, 2017, between Milestone and the Albemarle County School Board, the Board gave Milestone the right to market county school property sites to wireless communication companies as potential cell tower locations. In exchange, Milestone agreed to identify, contact, and screen wireless carriers and, upon approval by school and county officials, to build the towers and arrange contracts with cell service providers wishing to lease space on the poles.

The ten-year agreement, obtained by the Crozet Gazette from the school division via a Freedom of Information Act request, covers 33 locations across Albemarle County, including 16 elementary schools, five middle schools, four high schools, and eight other locations including a public charter school and several academies. While the marketing agreement contains no guarantee that a school location proposed by Milestone will be approved by the county, several aspects of its provisions warrant a closer look, beginning with who signed the document.

The contract refers to the School Board as “Owner” of the public school property being offered as potential tower sites, as the Board is empowered to enter into contracts involving school land. However, the agreement was signed by Dean Tisdadt, former Chief Operating Officer of the school division who retired in June, instead of by a representative of the School Board. Though Tisdadt often signed contractual documents in the course of county business, in this case he had not been authorized to do so by the School Board in a formal vote, and thus was not a valid signatory on the contract.

“It was an abnormal process,” said Phil Giaramita, Strategic Communications Officer for the school division, “and the bottom line is that the agreement is void.” As a result, the School Board will re-evaluate its options at a future Board meeting, likely in August, and may explore the possibility of pursuing a similar agreement with Milestone or another developer in a more open, public process.

“I can’t speak for Dean, but I believe his cause was noble,” said Giaramita. “We’ve had an objective for several years to close this digital divide and bring broadband access to the thousands of school kids throughout the county who don’t have it. My sense is that Dean saw this as a step toward making that happen, and that a marketing agreement was one way to lend credibility to Milestone when talking to carriers about leasing space, to show that we are committed to addressing this technology gap.”

Since the agreement did not go before the School Board for approval, most Board members were not aware of the agreement’s existence even as they deliberated over the proposed cell towers at Albemarle High School and Western Albemarle High School over the last two years. “I certainly did not know of any marketing agreement with Milestone,” said School Board member David Oberg, who represents the White Hall district. As the Board has already approved the proposed WAHS cell tower, that plan will continue on to the Board of Supervisors for consideration this fall.

Though now rendered invalid, the text of the Milestone agreement may provide residents concerned about the use of school sites for cell towers with clues as to how future contracts may be structured. School officials have stressed that the Milestone agreement did not confer exclusive rights to Milestone or contain financial obligations by the school division.

“The agreement simply provides that [Milestone] can propose to the School Division locations for future towers,” said School Board Chair Kate Acuff, noting that there is “no guarantee that any proposed locations will be approved.” Ira Socol, Chief Technology and Innovation Officer for the school division, said in a recent Daily Progress article that “Milestone sites towers at the request of school districts and local governments; they do not go out with an ‘open for business’ sign for these sites.”

Yet the agreement does convey to Milestone “the right and authority to act for the purpose of marketing each site to procure carriers who are ready, able and willing to enter into agreements.”  As well, the agreement creates a priority ordering of potential business partners for the School Board that favors Milestone, in consideration of the firm’s “investment of its resources” in marketing the school sites. Under its terms, the Board must notify Milestone within two business days of any tower proposal from another developer, and must enter into good faith negotiations with Milestone about Milestone constructing the proposed tower before it may proceed to negotiate with other parties.

In addition, a confidentiality clause in the agreement barring disclosure of its terms and conditions to any third parties meant that local school officials, parents, and owners of neighboring property had little chance of learning about its existence. Indeed, even Charlottesville attorney Lori Schweller, tasked with representing Milestone at the Crozet Community Advisory Committee public meeting about the WAHS tower, was unaware of the agreement.

The proposed WAHS tower site was approved by the School Board last year, though it was not recommended for approval by the Planning Commission at its June 26 meeting, due to zoning ordinance violations and in deference to the county’s Architectural Review Board, which also did not recommend approval. The Albemarle County Board of Supervisors will hold a public hearing and discussion of requested special use permits related to the project at its meeting September 12.

 

 

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