Communications giant AT&T has filed a federal lawsuit against the city of Daphne claiming officials improperly removed warning markers the company uses to identify buried cables.
According to federal court records, AT&T filed suit against the city on July 27 after a protracted back-and-forth on how the company would come into compliance with a right-of-way ordinance the Daphne City Council passed in 2017.
The lawsuit names Mayor Dane Haygood and Public Works Director Jeremy Sasser as defendants in their individual capacities, and has already resulted in a preliminary injunction preventing the city from continuing to remove any of AT&T’s markers.
“[The city] removed or destroyed over 300 buried utility warning markers belonging to [AT&T] that were located in public rights-of-way and private easements within the city,” the complaint reads. “The warning markers primarily are plastic tubes and bear warning messages of buried cables that caution individuals to call 811 before excavating in the area.”
The new rules adopted in the 2017 right-of-way ordinance say warning markers have to be identified in plans submitted for new construction projects that impact the city’s rights-of-way and their height can’t be more than 24 inches from the grade “except as required by federal or state law.” But AT&T’s markers are more than 24 inches from the ground.
While AT&T admits that some of its markers exceeded that maximum height, the company has argued that most if not all of those were installed before the 2017 ordinance took effect and are not part of “new construction projects.” Still, the company says it tried to work with the city initially.
“Nothing in the ordinance purports to ban warning markers above 24 inches that were installed before the [its] effective date and, by its explicit language, [the] height limitation applies only to warning markers that will be placed in connection with future construction or repair work,” the lawsuit claims.
According to AT&T’s attorney, the city sent a letter in March notifying the company its warning markers needed to be brought into compliance. The following month, AT&T asked for and received an extension of time to do that.
“AT&T is in the process of bringing into compliance utility markers that were placed subsequent to enactment of the ordinance,” the lawsuit says, citing that letter. “In addition, AT&T is in the process of removing utility markers which, upon review, appear duplicative and not necessary for public or employee safety.”
According to AT&T, that’s when the correspondence with the city stopped, but several months later, public works employees started taking down AT&T’s warning markers — more than 300 of them. Based on claims in the lawsuit, that happened between July 10 and July 11.
Haygood said the warning markers, which he described as three to four feet tall in some places, present a visual distraction, and the frequency with which they were being erected began to increase about two years ago.
Adopting the 2017 ordinance was a way of dealing with that, and he said the city worked with businesses in the process and even agreed to increase the maximum height for these types of markers from 20 inches to 24 inches.
“We waited a year through various points of contact — mainly verbally — for the two largest proliferators of these markers to come into compliance, and we were largely ignored,” Haygood said. “We put them on notice and gave them a deadline to come into compliance. We even said, ‘If you don’t have the resources to meet the deadline or it’s overly burdensome, send us a plan that you can manage.’”
What the city received, Haygood said, was a protracted plan that would have taken years to implement. He told Lagniappe the city was willing to work with AT&T but wanted to see “an intentional effort on their part.”
“In June, code enforcement started removing noncompliant markers, and the number in our city was just amazing,” he said. “I understand they’re intended to be highly visible, but they’re a visual distraction. They also present a significant burden to us maintaining our rights of way because we have taken time to mow around them and they can damage our equipment.”
Haygood said other businesses have made strides to come into compliance with the ordinance but AT&T has “chosen to make an issue of this.”
“I told citizens during my campaign that the aesthetics and character of our community is important, and I’ll continue to protect that,” he said. “We want [AT&T] to provide high-speed internet for our citizens, but we also want them to be good corporate citizens that recognize our right to establish reasonable regulations.”
Earlier this month, U.S. District Judge Ginny Granade issued a preliminary injunction preventing the city from continuing to remove any more signs. She wrote that “it is in the public interest that the markers not be destroyed or removed before they can be replaced.”
Doing so, according to Granade’s order, could cause underground utility cables to be damaged, which could lead to the interruption of services used by the general public. She did not address AT&T’s other claims that removing the markers was detrimental to public safety because the cables they mark the location of support communications with 911 and between first responders.
A hearing on the matter is set for 9 a.m., Aug. 9, at the federal courthouse in Mobile.
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