By Amanda Martinez
Special to the SUN

A North Carolina-based wireless infrastructure company is suing Rio Arriba County and the Board of County Commissioners for denying a Special Use Permit to build a communications tower in Ojo Caliente.

TowerCo alleges that the commission unlawfully denied the permit despite it satisfying all county ordinance requirements, being recommended for approval by the county manager and Planning and Zoning Board and that it would close a cell service coverage gap for customers.

The lawsuit seeks that the court issue a judgment that the commission’s decision violated the Telecommunications Act of 1996, as well as requiring the commission to grant the Special Use Permit and all subsequent and ancillary permits within 15 days and to pay all reasonable attorney fees and other relief deemed proper by the court.

“Despite the complete lack of evidence that the Proposed Facility did not comply with the County Ordinance requirements, the Board nonetheless denied TowerCo’s Application,” the lawsuit states. “In doing so, the Board’s Denial ignores the undisputed evidence in the record presented by TowerCo and the County’s own Planning Committee demonstrating that the requested SUP should have been approved in accordance with the County’s existing standards.”

The company wants to build a 120-foot-tall monopole tower with a small equipment cabinet at #3 Private Drive 1690, Ojo Caliente. The property is owned by RPC and SAC Revocable Trust, which is legally represented by trustee Katharine Fishman Cook.

TowerCo applied for the Special Use Permit on Oct. 9, and it was reviewed by the Planning and Zoning Board on Dec. 3. The application included photos, maps of the chosen site and surrounding land parcels, engineering drawings and setbacks, radio frequency analysis, site survey and more, the lawsuit states.

The Board hired third-party consultant Wireless Tower Solutions to review the company’s application. The lawsuit states that the company agreed with TowerCo’s radio frequency analysis demonstrating a coverage gap in the area and that its application met all county requirements. The company recommended the permit for approval and the Board approved it in a 3-1 vote.

The company also provided traffic data obtained by the New Mexico Department of Transportation (NMDOT) to demonstrate the need for additional wireless coverage in the area. According to the NMDOT data portal, in 2024, 2,279 cars passed both ways through nearby New Mexico Junction 414 each day.

According to lawsuit, Verizon Wireless committed to leasing space on the tower for its antennas, and the tower could support equipment for at least two other wireless carriers. This would reduce the need for building additional structures in the future and close the customer coverage gap, the lawsuit states.

TowerCo also reached out to four other property owners in the area to express interest in leasing parts of their properties for the tower, but RPC and SAC Revocable Trust was the only one to get back to them.

One of the property owners was the Bureau of Land Management, which the lawsuit states failed to return several telephone and answer email inquiries.

The Commission held a public hearing on the permit on Dec. 18. The lawsuit states two people spoke against the permit.

Jonathan Garcia Jr. said, according to the lawsuit, said “that he believed there were several other towers in the area that could be used, and that he did not move out there to have an eyesore so close to his house.”

“Mr. Garcia also asserted that he believed there was BLM property in the area that would

be a better option and that TowerCo should work with BLM to find an alternative,” the lawsuit states.

Another area resident, Felipe Montoya, said he would like compensation for the decline in property value of his house and for health concerns, according to the lawsuit.

County Manager Jeremy Maestas recommended that the commission approve the permit during the meeting, according to the lawsuit.

The commission voted 2-0 to deny the permit, with one commissioner abstaining. The lawsuit did not list how each commissioner voted.

“During Board deliberation, Commissioner Morales stated that he would not

support approval of the Application until the Proposed Facility was moved to a different

location, but provided no further explanation or support for his decision, and did not identify any

other location that may be available for the Proposed Facility,” the lawsuit states.

Maestas responded to an email asking for the name of the commissioner who abstained. He said County Commissioner Alex Naranjo abstained while commissioners Brandon Bustos and Moises Morales voted against the permit.

Maestas said he had no comment about the lawsuit.

Attorneys from Holland & Hart, LLP and Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo filed the lawsuit on behalf of TowerCo on Feb. 27.

Telecommunications Act

The Commission issued a written denial of the permit on Jan. 29.

The lawsuit explains that the commissioners’ decision violates two parts of the federal Telecommunications Act of 1996.

First, The Act says state and local governments “shall not have the effect of prohibiting the pro-vision of personal wireless services.” The lawsuit cites a 2013 lawsuit filed by AT&T against the Village of Corrales for denying a permit to build a tower for wireless antennas. The 10th Circuit Court of Appeals ruled in AT&T’s favor in 2016.

The Act also requires governing bodies to provide written substantial evidence for a denial. The lawsuit states the commission failed to do this.

“The Denial did not contain any findings of fact, nor did it articulate any reasons for denying the Application,” the lawsuit states. “The Denial merely stated that ‘(t)he Board found that the application did not satisfy the County’s regulatory requirements for the siting of

telecommunications facilities.’”