|Ken Laubenstein is photographed on his Muskogee|
County property, where he takes nature photos. He
sued after a cell tower was built nearby.
Phoenix file photo
by D.E. Smoot, Phoenix Staff Writer, muskogeephoenix.com, 13 October 2015
A state appellate court upheld a local judge's ruling that a telecommunications tower erected near the property of a Muskogee County man constitutes a private nuisance that must be abated by removal.
A lawyer representing the defendants named in the lawsuit filed by Ken Laubenstein and Billie Wallace said it is too early to know how his clients plan to proceed. They could ask the Oklahoma Civil Court of Appeals to reconsider its opinion, which was released Friday, or petition the Oklahoma Supreme Court for further review.
"I really can't tell you what the plan is," Thomas Marcum, who represents BoDe Tower, said Monday afternoon. "I just received the opinion ... so I really can't tell you what the plan is."
The lawsuit was filed in 2010 after a 250-foot cell tower was built near Laubenstein's property — a nearly 170-acre "wildlife sanctuary" that is listed on the Oklahoma Natural Areas Registry — and tried in 2013 by Muskogee County Associate District Judge Norman D. Thygesen. After the trial, which lasted five days during the course of about eight months, Thygesen found the structure erected by BoDe Tower to be "a private nuisance" that must "be abated" and "removed."
A private nuisance is something that interferes with "a person's interest in the private use and enjoyment" of his or her land. Laubenstein, who is represented by D.D. Hayes, presented evidence that the tower's flashing strobe lights and red beacons constantly shined "through the 14 rooftop skylights" of his home.
Defendants contend the tower constitutes a "legalized nuisance" that provides improved cell phone service for residents of the Gooseneck Bend area and deny the tower has an adverse "effect on wildlife."
Thygesen disagreed. He ordered that the tower be removed within 60 days of his ruling but stayed the order and allowed it to stand pending the outcome of the appeal. Appellate Court Judge Deborah B. Barnes agreed with Thygesen, noting that "the tower sticks out like a sore thumb" over Laubenstein's property.
"His property was so pristine prior to the construction of the tower that during the day he could he could pursue a hobby in nature photography," Barnes wrote in the opinion. "Now, during the day, he can still pursue this hobby, but a reflection of the tower is cast across almost the entire surface of the lake — a reflection which follows the view wherever he/she is positioned about the water — and a white strobe light constantly flashes 'like a big flashbulb going off every second' through the day. ..."
The appellate court found that the tower "annoys" and "injures" Laubenstein's "comfort" and "repose."
By D.E. Smoot Phoenix Staff Writer
Attempts to contact Laubenstein and Hayes on Monday were unsuccessful.
Reach D.E. Smoot at (918) 684-2901 firstname.lastname@example.org