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MOTION TO REVOKE PERMIT Lisa Nowakowski, Petitioner/Appellant, through her attorney, Michael C. Worsham, moves this Court to revoke the permit for the communications tower unlawfully constructed by Nextel Communications of the Mid-Atlantic, Inc. (Nextel) at 2836-38 Forge Hill, Road in Bel Air, Maryland, and to order Harford County to revoke the permit issued by the Harford County Department of Planning and Zoning, and says in support the following.   PROCEDURAL HISTORY OF THIS CASE  On April 13, 1998, Nextel filed an application with the Harford County Board of Appeals requesting a special exception for construction and operation of a communications tower in an agricultural zone to be used in conjunction with Nextel's digital wireless phone network. Nextel proposed that the tower be erected at 2836-2838 Forge Hill Road in Bel Air, Maryland. On August 19, 1998, a hearing was held before the Harford County Hearing Examiner. Lisa Nowakowski appeared to protest the application. She was denied standing. She appealed her denial of standing. On March 9, 1999, the decision denying her standing was affirmed by the Harford County Council/Board of Appeals. On August 31, 1999 the Circuit Court for Harford County again affirmed the denial of standing, and otherwise affirmed the decision to approve the special exception. The Circuit Court's decision was appealed by Lisa Nowakowski to the Maryland Court of Special Appeals. While the Nowakowski appeal was ongoing, on July 8, 1999 a building permit to construct the cell tower was issued to Nextel by the Harford County Planning and Zoning Department. A copy of the permit is attached as Exhibit A . Sometime after July 8, 1999 the cell tower was constructed, and remains standing as of the filing date of the instant Motion. A photograph of the tower with three wireless antenna arrays was taken in July 2001. The view of the cell tower as seen then from Route 1 north of Bel Air, Maryland is attached as Exhibit B. In an unreported decision dated July 27, 2000 the Maryland Court of Special Appeals reversed the Harford County Circuit Court decision in the Nowakowski case. See Exhibit C. The Court of Special Appeals ruled that Lisa Nowakowski should be granted standing before the Harford County Hearing Examiner. The appeal court ordered that the case be remanded to the Harford County Circuit Court, with directions to reverse the decision of the Harford County Board of Appeals, and to order the Board to grant Ms. Nowakowski administrative standing to participate in the proceeding to determine Nextel's right to a special exception. In the interim, on May 30, 2000 Harford County Bill No. 00-11, as amended, became law, with an effective date of July 31, 2000. This Bill amended § 267-53 of the Harford County Code regarding communications towers, and created new requirements for cellular tower applicants. A copy of the new provisions, Code § 267-53.5 and 267-53.6 is attached as Exhibit D. The remand hearing before the Hearing Examiner was scheduled for July 23, 2001. In a July 20, 2001 conference call, the Hearing Examiner stated to counsel that based on the Court of Special Appeals opinion, the hearing on remand would be a de novo hearing. The Hearing Examiner requested briefs on whether the new cellular tower law passed by Harford County while the case was on appeal to the Court of Special Appeals should apply to the remand hearing on Nextel's application for a special exception. After briefs were submitted, the Hearing Examiner ruled that the new cell tower ordinance is not applicable to the case on remand, but that the remand hearing would otherwise be a de novo proceeding. The Hearing Examiner's October 1, 2001 Memoranda Opinion And Order is attached as Exhibit E. The remand hearing was re-scheduled again for January 28, 2001. Just before the hearing, on Jan. 22, 2002, counsel for Nextel brought to the Hearing Examiner's attention the case Powell v. Calvert County, Maryland, 2002 Md. Lexis 2, decided by the Court of Appeals on January 10, 2002. Nextel's counsel requested a postponement, and suggested further briefing regarding the application of the new Harford County cell tower ordinance to the remand hearing. See Jan. 22, 2002 letter from Albert J.A. Young to William F. Casey, attached as Exhibit F. The January 28, 2002 hearing was postponed indefinitely by the Hearing Examiner. See Jan. 24, 2002 Notice of Postponement, attached as Exhibit G. The Hearing Examiner has taken no further action since issuing this notice regarding either further briefing on any issues, or to re-scheduling the hearing with a date certain. On Feb. 10, 2002 counsel for Lisa Nowakowski sent a letter to the Harford County Department of Law, advising it of the Powell v. Calvert County decision, and requesting that Nextel's permit be revoked. See Feb. 10, 2002 letter from Michael C. Worsham to Nancy L. Giorno, attached as Exhibit H. The Harford County law department refused to take any action, and stated that the Nextel approval is valid. See February 28, 2002 letter of Nancy L. Giorno to Michael Worsham, attached as Exhibit I.

ARGUMENT   5. NEXTEL'S PERMIT WAS UNLAWFULLY GRANTED AND MUST BE REVOKED NOW The issuance of a building or construction permit ('permit') by the Harford County Planning and Zoning Department ('County') before all appeals have been completed was unlawful. This issue was reiterated again in the recent Court of Appeals decision in Powell v. Calvert County, Maryland 2002 Md. Lexis 2, decided Jan. 10, 2002 (Powell II). Powell II reversed the decision of the Court of Special Appeals in Powell I ( Powell v. Calvert County, Maryland, 137 Md. App. 425, 768 A.2d 750 (2001)). Powell II held that the "respondent never obtained a final valid exception prior to the change in law and, therefore, never obtained a vested right." Powell 2 at 15. In this regard Powell 2 established nothing new, as this doctrine had been established almost forty years ago: It would seem to follow from the decisions in Banner, Lake Falls and Grau that an applicant for rezoning to a more intense use of his property, who has been successful before the zoning authorities and the circuit court does not acquire a vested or substantive right which may not be wiped out by legislation which takes effect during the pendency in this Court of the appeal from the actions below. Powell 2 at 20 (citing Yorkdale v. Powell, 237 Md. 121, 126 (1964)). A year later the Court of Appeals repeated this finding in Mandel v. Bd. Of County Comm'rs of Howard County, 238 Md. 208 (1965): this case is to be determined under the law as it now exists, that the appellants had not secured a final decree establishing their rights to use their properties for the use permitted under the former classification, that they had no vested rights, and that the change in the regulations is not invalid because it eliminates the proposed use. Id. at 215. The Powell II court went on to state unequivocally that "Under the facts of the case at bar, respondent had not obtained a 'valid permit' or in this case, a valid special exception. . . . At no time was respondent proceeding under a 'valid permit' " Powell II at 24. The court went further to make it crystal clear that the special permit was not presumed valid simply because it had never been declared unlawful or invalid: "It was still in litigation. Even if the special exception was never "declared" invalid, it was never a final valid special exception, which would qualify respondent to begin to vest rights in a zoning approval." Powell II at 25. Thus, until all appeals had been concluded, Nextel never had a valid permit and the County could not issue Nextel a valid permit. The Hearing Examiner has already ruled that the remand hearing must be held de novo (Exh. E at 3). Nextel will have to re-submit an application meeting all the requirements of the new County cell tower ordinance which became law in 1999. See the new requirements at Code § 267-53.5 and 267-53.6 (Exh. D). Another significant change since the original hearing in 1998 is that sometime during 1999-2000 the area where the tower is located was added to the Lower Deer Creek Valley Rural Legacy Area. Attached as Exh. J is a copy of a pamphlet which describes the area and depicts the entire legacy area in a simple map, and a copy of a second map with a detailed close-up showing the outline of the existing (solid dark line) and proposed future (dashed line) of the Deer Creek Rural Legacy Area. The cell tower site is located in the lower middle of this detailed map, at about the intersection of Forge Hill Road and Allibone Road. Quite simply, Nextel erected and continues to operate a communications tower without a valid permit, and the burden to legally obtain that permit has increased for Nextel. With the tower already operating, and a higher risk of failure in the special exception process, Nextel has no reason to hurry the process. As a result Ms. Nowakowski is being denied the very right the Court of Special Appeals ruled that she had to be heard. Allowing the tower to continue operating without a valid permit before the special exception hearing process has even begun (anew) effectively overturns the remand, and denies Ms. Nowakowski her right under Harford County Code § A274, et seq. Further, it harms Ms. Nowakowski and the surrounding community by directly undermining the stated intent of the Rural Legacy Program to "offer protection to areas rich in agriculture, natural, scenic, and historic resources." Exh. J. To allow Nextel to continuing operating an illegally constructed tower is also prejudicial to Ms. Nowakowski and others in any future proceeding. The Hearing Examiner has no equitable powers to either require Nextel to remove the tower, or to revoke the permit unlawfully issued by the County. Only this Court has that power. The Court should exercise this power now.   2. WHETHER THE NEW COUNTY CELL TOWER LAW APPLIES ON REMAND IS IRRELEVANT TO NEXTEL'S PERMIT BEING ILLEGAL The Hearing Examiner ruled on Oct. 1, 2001 (Exh. E) that the new ordinance does not apply. This decision was wrong, and Powell II removes any doubt for Nextel or anyone who thought otherwise: We note that even if the Court of Special Appeals had not vacated the decision of the Board but had only remanded the case, our holding would be the same. As the Court of Special Appeals held in [Powell v. Calvert County, 137 Md. App. 425 (2001)] the Board on remand should have applied the 1998 amendment. Powell II, at n. 9. Even Nextel, the applicant, realized that the Hearing Examiner's ruling was wrong in light of the clear decision in Powell II, although Nextel put its own favorable spin on the issue. See Exh. F. However, deciding what law applies on remand is completely separate from and irrelevant to the illegality of the permit issued to Nextel and Nextel's subsequent construction of the tower. Nextel's permit is illegal because the Hearing Examiner's original decision was appealed, an appeal was and still is pending, and no permit could be lawfully issued until any appeals had completely concluded. The fact that in a completely separate legislative action, the Harford County Council passed a new law that will have an additional impact on the remand hearing is irrelevant to the principal Powell II clearly establishes: a special exception permit is not granted and valid until all appeals are concluded. Nextel's permit is illegal now - the new County cell tower law simply means that a new law will be applied on remand. Currently the remand hearing for the special exception has been held up indefinitely in the Hearing Examiner's office over the issue of whether the County cell tower ordinance passed in 2000 applies. It would be very useful if this Court would decide this issue now, even though the law to be applied on remand does not affect the current illegality of the permit. A Court decision would clear up an issue which has already been briefed once for the Hearing Examiner, decided incorrectly, and is now currently stalled in the Hearing Examiner's office. A Court decision - rather than a Hearing Examiner ruling - would also reduce the likelihood of a subsequent appeal of any decision the Hearing Examiner makes on this issue.

CONCLUSION Lisa Nowakowski's constitutional due process rights to a fair procedure were violated at the 1998 hearing, when the tower was permitted by Harford County in July 1999, and continue to be violated each day the tower remains without a lawful permit. Nextel, as well as the two other wireless carriers which have co-located on the cell tower, has benefitted from the illegal permit granted by the County and Nextel's illegal construction. Lisa Nowakowski and other persons located near and adjacent to Nextel's tower have been impacted by both the adverse aesthetic and the radiation effects of this tower, and will continue to be negatively impacted until it is removed. Even without the indefinitely stalled process in the Hearing Examiner's office, the time necessary for Nextel to re-submit an application meeting all requirements of the new County cell tower ordinance, and the appeals likely to be taken in this case, ensure that at least two more years will pass before final and complete resolution of this case. This Court can not allow Nextel and the other carriers to benefit, and Lisa Nowakowski and other effected persons to suffer, by allowing an illegally granted permit to remain in de facto effect for yet another two years, or more. Equally or more important to consider is the process for other future zoning cases that will be invariably be appealed. The Court can not and must not allow the Harford County zoning staff and its lawyers to continue operating under the false and mistaken illusion that they have the power to grant permits to applicants before the judicial appeals process has concluded. By doing so, the County is violating the equal protection rights of property owners, by favoring one property owner over another without a legal basis. Additionally, in the instant case the intent of the new County cell tower ordinance, as well as Maryland's Rural Legacy Program, are being undermined and violated. WHEREFORE, for the reasons cited, Lisa Nowakowski requests that this Court use its equitable powers to revoke and declare invalid the permit issued to Nextel by Harford County on July 8, 1999, and to Order the Harford County Department of Planning and Zoning to revoke this illegal permit. An Order is attached.

REQUEST FOR HEARING   Lisa Nowakowski requests a hearing on this Motion.     Respectfully,   Michael C. Worsham, Esq.	 1916 Cosner Road Forest Hill, Maryland 21050 (410) 557-6192 Fax: (509) 357-1930 Attorney for Petitioner/Appellant Lisa Nowakowski     CERTIFICATE OF SERVICE   I CERTIFY that on March 2002 a copy of this document was hand carried to: 1. Mr. Albert Young, Esq., attorney for Nextel Communications of the Mid-Atlantic, Brown, Brown, & Brown, P.A., 200 South Main Street, Bel Air, Maryland, 21014. 2. Honorable William F. Casey, Office of the Zoning Hearing Examiner, County Council of Harford County, Maryland, 212 S. Bond Street, Bel Air, Maryland, 21040. 3. Harford County Department of Planning and Zoning (served on the Harford County Department of Law), 220 S. Main St., Bel Air, MD 21014.    Michael C. Worsham, Esq. 1916 Cosner Road Forest Hill, MD 21050   ORDER   Upon consideration of the Motion To Revoke Permit, and for good cause shown, it is hereby ORDERED that the permit issued to Nextel Communications of the Mid Atlantic, Inc. on July 8, 1999 by the Harford County Department of Planning and Zoning is declared void and invalid, and further ORDERED that within 20 days of this Order, the Harford County Department of Planning and Zoning shall rescind and revoke any and all permits of any kind issued to Nextel or any other entity, to construct, build or operate a communications tower or facilities or related equipment cabinets at 2936-38 Forge Hill Road in Bel Air, Maryland, and further ORDERED that the Harford County Department of Planning and Zoning shall not issue any further permits of any kind related to building or operating of any communications facilities at 2836-38 Forge Hill Road until such time as a special exception has been granted to Nextel and all appeals of such special exception have completely terminated.   Date Judge, Circuit Court for Harford County, Maryland   Michael C. Worsham, Esq. Albert J.A. Young, Esq. William F. Casey, Esq., Harford County Office of the Zoning Hearing Examiner Harford County Department of Law

* 1. The Harford County Department of Planning and Zoning told counsel for Petitioner that other permits have been issued to Nextel for the Forge Hill Rod property for a fence, and to Nextel and/or other carriers for additional equipment sheds for the co-located antennas.