AT&T has filed a motion for a temporary restraining order against the City of Daphne, city employees and Mayor Dane Haygood from removing any of the company’s underground utility markers within the city.
According to the July 27 filing in federal court, AT&T said the city had destroyed over 300 of the company’s markers, with the company saying each act constitutes a Class C misdemeanor under Alabama law. AT&T said it was seeking the injunction in order to keep the City from removing any further markers.
“After agreeing to temporarily halt their conduct in response to Plaintiffs’ continued protests, Defendants have since indicated they will resume their illegal removal actions with respect to AT&T Alabama’s approximately 371 remaining warning markers and AT&T Corp.’s remaining 35 markers, necessitating emergency injunctive relief and forcing Defendants to file this motion and related litigation,” the motion said.
July 20 letter from AT&T to City of Daphne
In a July 20 letter sent by AT&T to the city and addressed to Haygood, the company said the city had destroyed approximately 375 utility markers belonging to the company and asked the city for “written assurance that no more AT&T markers will be destroyed, and that the City will cooperate with AT&T as it works to replace markers necessary to protect public safety.”
The July 20 letter said the series of events that led to the issue started with a letter to the company from the city on March 15, which directed that AT&T cease installing markers in the City’s right of way that violated the sign ordinance and bring all existing markers within the City’s right of way into compliance with the ordinance by April 20. In that March 15 letter, Deputy Director of Public Works William Eringman wrote the following to AT&T:
“On March 20, 2017 The Daphne City Council adopted a revised Right- Of-Way Ordinance as Ordinance No. 2017-22 … One of the changes introduced was in Appendix B Section I.A.1.b, this section states that all utility markers in City Right-of-Way (ROW) may be no more than 24 in height above grade. Notifications of this change were sent to utility companies via email from Daphne Deputy Public Works Director B.J. Eringman on April 06, 2017. It has come to the City's attention that actions have not been undertaken to correct non-compliant markers. Further, new markers have continued to be installed in the City ROW that violate this ordinance.
“I hereby request that each utility provider (i) immediately discontinue installing markers in City ROW that violate this ordinance and (ii) bring all existing markers in City ROW into compliance the Ordinance on or before April 20, 2018 (the ‘Compliance Date’). In the event that bringing existing markers into full compliance by the Compliance Date set forth above is not possible or otherwise presents a hardship, you may submit a ‘2018 ROW Marker Compliance Plan’ outlining detailed activities, milestones and timelines for coming into full compliance with the Ordinance. Any such Compliance Plan request should be submitted to the City of Daphne's Public Works Director for consideration and shall be subject to the written approval of the City of Daphne, in the sole discretion of the City. After the Compliance Date, the City will begin taking action to enforce marker compliance including but not limited to fines pursuant to the ordinance as well as removal of non-compliant markers within City ROW.”
AT&T said it asked the city to “confirm that the City was asking that all warning markers, not just new ones, should meet the 24-inch height requirement,” which the city confirmed.
AT&T responded to the March 15 letter from the city with a letter on April 18, which stated:
“AT&T is in the process of bringing into compliance utility markers that were placed subsequent to enactment of the Ordinance. 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. AT&T welcomes the opportunity to address any additional locations the City would like AT&T to review.
“Going forward, we will comply with the Ordinance. Additionally, as we continue with our network expansion and improvement initiatives, we will address any locations identified that have excessive existing post markers.
“We value our standing as a corporate citizen of Daphne and our good working relationship with the City. Please feel free to contact me if you have any questions.”
In the July 20 letter, AT&T said they received no response to that April 18 letter from the city.
“Instead, it is our understanding that without any warning to AT&T you directed your code enforcement personnel to undertake dangerous actions on July 10 and 11, 2018, actions which were wholly outside the four corners of the ordinance,” the letter said. “Specifically, we understand that you directed City personnel to saw off AT&T’s buried cable markers at ground level and remove them, without making any record of their location.”
The letter adds that the removals were not limited to City of Daphne right of way.
“AT&T’s markers also removed from the State of Alabama’s Right of Way and even from private easements,” the letter said. “Nor was the destruction limited to utility markers deemed non-compliant with the Ordinance. The City’s agents also removed markers which AT&T had identified as being placed after the effective date of the Ordinance, and which AT&T had modified to reduce in height to 24’’ pursuant to the Ordinance. Some of these markers contained electronics and wiring used in the cable location process…”
The company said the actions taken by the city could be harmful to residents and businesses.
“A cable/fiber cut could preclude an urgent call to 911 for assistance or shut down a host of Daphne businesses for an extended period,” the letter said. “We will be separately addressing the attendant risks and expenses caused by the City’s intentional and wrongful actions in due time.”
The July 20 letter referenced a July 13 email from Haygood stating that the City would “take no further enforcement action provided AT&T can submit a compliance plan by the end of next week and an approved compliance plan by July 31, 2018,” with AT&T replying they had already complied with the ordinance prior to the actions taken by the city on July 10 and 11 to cut markers down.
“AT&T … had already complied with the Ordinance, prior to your actions of July 10 and 11, by identifying the utility markers installed after the Ordinance took effect and modifying those more than 24’’ in height,” the letter said. “Notwithstanding the fact that City personnel destroyed those modified utility markers, without regard to their height or compliance with the Ordinance, AT&T will continue to place markers 24’’ in height, including the markers it installs as replacements for those illegally removed by the City. That is AT&T’s plan of compliance.”
AT&T said in the letter that it doesn’t agree the ordinance has retroactive applications to markers placed before the effective date of the sign ordinance and said it believes the reduction of the height of the markers “serves no legitimate purpose and, in fact, compromises the safety of the public and our ability to protect communications for everyone in your City, including 911 services.”
“We view these recent events as an unfortunate and unsettling aberration,” the letter said. “It remains our desire to collegially work with you in the best interest of your citizens but we will not sit idly by and accept wrongful dangerous behavior.“
The July 27 federal court motion
AT&T also alleges in its motion that the city seemed to have targeted just AT&T markers, saying the city “did not remove warning markers for buried gas, water or sewer facilities in the same City rights-of-way, even though those markers are more than 24 inches in height and the Ordinance treats them no differently than telecommunications facilities markers … In fact, Defendants instructed their agents to remove only telecommunications company markers.”
AT&T requested that the court grant the restraining order to keep the city from removing or attempting to remove any further warning markers installed before the effective date of the sign ordinance, enforcing or attempting to enforce the sign ordinance with respect to markers installed before the effective date, enforcing or attempting to enforce the ordinance through means not specifically authorized in the text of the ordinance, and enforcing the ordinance with respect to markers not in the city’ right of way.
The motion also requested a hearing to have the City show cause why a permanent injunction on the same terms should not enter and remain in force pending resolution of the underlying litigation.
City of Daphne response
The Courier contacted Mayor Haygood for a comment on the July 20 letter on Friday, July 27. Haygood called The Courier back and informed it of the motion filed by AT&T in federal court and said he likely would not be able to answer questions due to the pending litigation.
Haygood said the city would likely release a statement, but the statement was not available by the press deadline.
Editor’s Note: Check for the fully updated version of this story with the City of Daphne’s statement when it arrives.
