Can a county commission void a 2004 restrictive covenant in its own deed that limits a 911 cell tower to emergency-only use, so the public can also get cell coverage from it?

Plain-English summary

In 2004, the Grant County Commission paid $30,000 to Guide Net LLC for a 0.294-acre parcel on Charles Knob Mountain so the County could put up a tower for its planned 911 emergency communications system. The contract, incorporated into the deed, contained a restrictive covenant: the parcel and any tower on it could only be used "for the limited purpose of transmitting and receiving radio signals necessary for the operation of the County's Emergency 911 system." The covenant expressly forbade leasing antenna space on "any tower or towers owned by the [Commission]" for non-911 purposes.

A decade later, the Commission realized this restriction was blocking the County from co-locating commercial cell or broadband antennas on the tower, hurting cell coverage for residents. They asked the prosecuting attorney whether the covenant could be voided. They also asked about scope (does it really cover all county towers everywhere?), and about a possible conflict of interest involving a Grant County Development Authority member who was also one of the four owners of Guide Net.

The AG answered three questions:

Q1: Can the covenant be voided? Probably not on the facts presented. West Virginia generally enforces restrictive covenants where they are reasonable, not contrary to public policy, not in restraint of trade, and not for the purpose of creating a monopoly (Wallace v. St. Clair; Allemong v. Frendzel). The plain language unambiguously locked the parcel to 911 use. The AG found no West Virginia case voiding a comparable covenant. Out-of-state authority cut against voiding: Connecticut upheld a water-supply restriction even though it blocked a wireless tower (Morgenbesser), and New York held a covenant that limited cell service did not violate public policy where alternative tower sites existed (Chambers v. Old Stone Hill Rd. Assoc.). Nothing in the County's facts suggested Charles Knob was the only viable tower site.

Q2: How far does the covenant reach? Only to the Charles Knob parcel. The plural reference to "any tower or towers owned by the [Commission]" was anchored to the contract's subject matter, the Charles Knob parcel; it did not sweep in towers elsewhere. Even if the language were ambiguous, ambiguity in a covenant is construed against the grantor (Allemong), here Guide Net.

Q3: Was there an unlawful conflict of interest? That question belongs to the West Virginia Ethics Commission, which has primary jurisdiction over alleged Ethics Act violations under W. Va. Code § 6B-2-2(b). The AG declined to second-guess that statutory allocation. The Ethics Commission applies the Act's standards (W. Va. Code § 6B-1-1 et seq.) to decide whether an official used office "for personal gain beyond the lawful emoluments of their position."

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

West Virginia's Ethics Act has been amended in subsequent sessions, and the case law on restrictive covenants and on telecommunications-tower siting continues to develop. Anyone facing a present-day version of these questions should pull current statutes, current Ethics Commission advisory opinions, and current case law before deciding how to proceed.

Common questions

Q: What was the actual covenant language?
A: "The [Commission] agrees that the 0.294 acre parcel to be purchased from [Guide Net] will be used for the limited purpose of transmitting and receiving radio signals necessary for the operation of the County's Emergency 911 system. . . . Any use beyond what is necessary to operate the 911 system, including the providing or leasing of space, with or without consideration, on any tower or towers owned by the [Commission], that is not directly related to the 911 system is not permitted."

Q: When can a court refuse to enforce a restrictive covenant in West Virginia?
A: Generally only where the covenant is unreasonable, contrary to public policy, in restraint of trade, or designed to create a monopoly (Wallace v. St. Clair). In Allemong v. Frendzel, the Court upheld a covenant prohibiting alcohol sales. In McIntyre v. Zara, the Court suggested even prohibitions on subdividing or restricting contractors could be enforceable when "reasonably designed" to "establish a residential area." The bar to invalidate is high.

Q: Why didn't a public-policy argument win here?
A: The AG noted that other state courts have rejected similar arguments. Morgenbesser (Conn. 2006) enforced a "water supply purposes" restriction even though it blocked a wireless tower. Chambers v. Old Stone Hill Rd. Assoc. (N.Y. 2004) and Site Tech Grp. v. Bd. of Zoning Appeals (E.D.N.Y. 2001) both upheld restrictions limiting telecom siting where alternative sites existed. Public policy favors universal access to telecom, but courts will not use that to override clear contract terms.

Q: Did the covenant restrict every tower the County owns, or just this tower?
A: Just this tower (and any future towers on the same Charles Knob parcel). The contract's subject matter was the Charles Knob parcel; the plural "towers" reflects that more than one tower could in theory be erected there, not that the Commission's other tower sites were restricted. Zimmerer v. Romano applied the plain-meaning rule. Fraternal Order of Police v. City of Fairmont held that plain contract language is applied per its meaning. Even if there were ambiguity, Allemong construes ambiguity against the grantor (here, Guide Net), which would not help broaden the covenant.

Q: What about the alleged conflict of interest?
A: One of Guide Net's four owners, James M. Cookman, was also a member of the Grant County Development Authority and signed the purchase contract and deed for Guide Net. Cookman's Authority position arguably gave him "inside knowledge" of the County's plans. The AG did not opine on whether that crossed a legal line. Instead, the opinion identified the Ethics Commission as the proper forum, citing the Ethics Act's broad jurisdiction over "all elected and appointed public officials and public employees" (W. Va. Code § 6B-2-5(a)) and the Commission's power to "initiate or receive complaints and make investigations" (id. § 6B-2-2(b)).

Q: Could the County now go negotiate with Guide Net to release the covenant?
A: That option is open as a matter of contract; the AG did not address it. A grantor can usually agree to release or modify a covenant. Whether Guide Net would do so, and on what terms, is a private negotiation question.

Q: Could the County build a different tower on a different parcel for commercial use?
A: Yes; the covenant was specific to the Charles Knob parcel. The County could acquire a new parcel without a similar restriction, or use an existing parcel that is not subject to the Charles Knob covenant.

Background and statutory framework

Restrictive covenants in West Virginia. "The fundamental rule in construing covenants and restrictive agreements is that the intention of the parties governs. That intention is gathered from the entire instrument by which the restriction is created, the surrounding circumstances and the objects which the covenant is designed to accomplish." Allemong v. Frendzel, 178 W. Va. 601 (1987) (citing Wallace v. St. Clair, 147 W. Va. 377 (1962)); Jubb v. Letterle, 185 W. Va. 239 (1991).

Limits on enforceability. Courts "have generally sustained [restrictive covenants] where reasonable, not contrary to public policy, not in restraint of trade, and not for the purpose of creating a monopoly." Wallace, 147 W. Va. at 387. McIntyre v. Zara (1990) treated covenants as enforceable when "reasonably designed" and "no broader than necessary."

Out-of-state authority. Other state courts uphold telecom-restrictive covenants. Morgenbesser v. Aquarion Water Co. of Conn., 888 A.2d 1078 (Conn. 2006), enforced a "water supply purposes or purposes incidental or accessory thereto" restriction over an attempt to put up a wireless tower. Chambers v. Old Stone Hill Rd. Assoc., 806 N.E.2d 979 (N.Y. 2004), held that a restrictive covenant does not violate public policy where it does not deny telecom services in the area. Site Tech Grp. Ltd. v. Bd. of Zoning Appeals, 140 F. Supp. 2d 255 (E.D.N.Y. 2001), upheld a zoning denial where alternative sites were available, though imperfect.

Plain meaning of contracts. Fraternal Order of Police, Lodge No. 69 v. City of Fairmont, 196 W. Va. 97 (1996); Zimmerer v. Romano, 223 W. Va. 769 (2009).

Construction against the grantor. Allemong, 178 W. Va. at 605.

Ethics Act framework. W. Va. Code § 6B-1-1 et seq. defines and enforces minimum ethical standards for state and local officials and employees. § 6B-1-2 establishes the policy that officials must not "exercise the powers of their office or employment for personal gain beyond the lawful emoluments of their position." § 6B-2-2(b) gives the Ethics Commission authority to "initiate or receive complaints and make investigations . . . of an alleged violation." § 6B-2-5(a) extends the Act to "all elected and appointed public officials and public employees, whether full or part time, in state, county, municipal governments and their respective boards, agencies, departments and commissions." County development authority members are appointed by the county commission and at least one commissioner must serve on the development authority. W. Va. Code § 7-12-3.

Citations

• W. Va. Code §§ 5-3-2; 6B-1-1 et seq.; 6B-1-2; 6B-2-2(b); 6B-2-5(a); 7-12-3
• Allemong v. Frendzel, 178 W. Va. 601 (1987)
• Wallace v. St. Clair, 147 W. Va. 377 (1962)
• Jubb v. Letterle, 185 W. Va. 239 (1991)
• McIntyre v. Zara, 183 W. Va. 202 (1990)
• Morgenbesser v. Aquarion Water Co. of Conn., 888 A.2d 1078 (Conn. 2006)
• Chambers v. Old Stone Hill Rd. Assoc., 806 N.E.2d 979 (N.Y. 2004)
• Site Tech Grp. v. Bd. of Zoning Appeals, 140 F. Supp. 2d 255 (E.D.N.Y. 2001)
• Zimmerer v. Romano, 223 W. Va. 769 (2009)
• Fraternal Order of Police v. City of Fairmont, 196 W. Va. 97 (1996)
• State ex rel. Discover Fin. Servs., Inc. v. Nibert, 231 W. Va. 227 (2013)

Source

• Landing page: https://ago.wv.gov/media/17886/download?inline
• Original PDF: https://ago.wv.gov/media/17886/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140

February 26, 2016

The Honorable Jeffrey R. Roth
Prosecuting Attorney
Office of the Grant County Prosecuting Attorney
5 Highland Avenue
Petersburg, WV 26847

Dear Prosecutor Roth:

You have asked for an Opinion of the Attorney General regarding a contract the Grant County Commission executed in 2004 for the purchase of real property for siting a telecommunications tower for the County's 911 system. This Opinion is being issued pursuant to West Virginia Code § 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your correspondence with the Office of the Attorney General.

Your letter raises a number of legal issues, which are addressed in turn below:

(1) May certain restrictive covenants, or parts of those restrictive covenants, from a contract that the Grant County Commission executed in 2004 be voided? (2) Assuming the restrictive covenant is enforceable, what is the scope of the restriction? (3) Would a development board member who facilitated various contracts on behalf of the development board and a private internet company have had a conflict of interest?

Question 1: May Certain Restrictive Covenants, or Parts of Those Restrictive Covenants, From a Contract That the Grant County Commission Executed in 2004 Be Voided?

According to your letter and accompanying documentation, the Grant County Commission in 2004 agreed to purchase a 0.294 acre plot of land on Charles Knob Mountain ("Charles Knob parcel") from Beacon Net LLC ("Beacon Net") for $30,000 for the purpose of acquiring a site on which the County could erect a hub cell tower to support the County's planned 911 system. As an apparent result of this agreement, the real estate was conveyed and the telecommunications tower was constructed ("Charles Knob tower"). But in 2015, the Commission realized that the 2004 contract, which was incorporated by reference into the deed, restricts the County from placing any antennae on the Charles Knob tower other than those needed to operate the 911 system. Specifically, the restrictive covenant provides:

The [Commission] agrees that the 0.294 acre parcel to be purchased from [Beacon Net] will be used for the limited purpose of transmitting and receiving radio signals necessary for the operation of the County's Emergency 911 system. . . . Any use beyond what is necessary to operate the 911 system, including the providing or leasing of space, with or without consideration, on any tower or towers owned by the [Commission], that is not directly related to the 911 system is not permitted.

We understand that the Commission now believes that the restrictive covenant "unfairly penalizes the public" by preventing the public from "receiving proper cell phone coverage in [the] county." The Commission asks whether the covenant can now be voided without affecting the underlying conveyance, so that the Commission can provide increased cell service and wireless internet access to the citizens of Grant County. As such, our response is limited only to whether the Commission may void the restrictive covenant.

Under the facts you provided, the restrictive covenant is probably enforceable on its plain terms. "The fundamental rule in construing covenants and restrictive agreements is that the intention of the parties governs. That intention is gathered from the entire instrument by which the restriction is created, the surrounding circumstances and the objects which the covenant is designed to accomplish." Syl. Pt. 2, Allemong v. Frendzel, 178 W. Va. 601, 602, 363 S.E.2d 487, 488 (1987) (citing Wallace v. St. Clair, 147 W. Va. 377, 390, 127 S.E.2d 742, 751 (1962)); Syl. Pt. 3, Jubb v. Letterle, 185 W. Va. 239, 240, 406 S.E.2d 461, 466 (1991) (citations omitted). The plain language in the contract and deed demonstrates without ambiguity that the Commission intended to purchase the Charles Knob parcel solely for the purpose of facilitating the County's 911 emergency facilities. The contract begins with a statement that the "Purchaser", the "County Commission of Grant County", "desires to buy said lot for the purpose [of] constructing and operating a radio tower for use as a part of the County's Emergency 911 system." The contract then includes several express restrictions on the use of land the Commission purchased. The Commission's use of the Charles Knob parcel is "limited [to the] purpose of transmitting and receiving radio signals necessary for the operation of the County's Emergency 911 system," and "[a]ny use beyond what is necessary to operate the 911 system . . . is not permitted." The contract expressly prohibits "outside agencies" from "attach[ing] antennae to the [Commission's] tower." The deed conveying the real estate states that "the terms, provisions, and conditions identified and set forth in the aforesaid contract of July 27, 2004, shall survive this deed and be binding upon the parties hereto, including their successors and assigns."

Although the Supreme Court of Appeals has identified exceptions to the enforcement of unambiguous restrictive covenants, the exceptions probably do not apply under the facts you provided. "While the courts have manifested some disfavor of covenants restricting the use of property, they have generally sustained them where reasonable, not contrary to public policy, not in restraint of trade, and not for the purpose of creating a monopoly." Wallace, 147 W. Va. at 387, 127 S.E.2d at 750 (internal quotations omitted); see also Allemong v. Frendzel, 178 W. Va. 601, 603, 363 S.E.2d 487, 489 (1987) (upholding covenant that "prohibit[ed] selling alcoholic beverages on the parcel of land"); McIntyre v. Zara, 183 W. Va. 202, 206, 394 S.E.2d 897, 901 (1990) (suggesting that "prohibitions against subdividing and using a contractor other than Skyline Contracting" would be permissible if "reasonably designed" to "establish a residential area" and "no broader than necessary to accomplish that purpose").

We have not found any cases in West Virginia applying these exceptions to void an unambiguous covenant like the one presented here, and cases from other jurisdictions appear to uphold covenants that have the effect of limiting access to telecommunications services. In Morgenbesser v. Aquarion Water Co. of Conn., 888 A.2d 1078 (Conn. 2006), the Connecticut Supreme Court considered a covenant that "limit[ed] the use of [a] property to 'water supply purposes or purposes incidental or accessory thereto.'" Id. at 826. Rejecting the argument of those who sought to erect a telecommunications tower, the court held that "the fact that the use of the property to operate a wireless communications facility might advance the public policy favoring universal access to telecommunications services does not permit this court to ignore the clear and unambiguous language of the restrictive covenant prohibiting such a use." Id. at 1082-83. Similarly, New York's highest court rejected an attempt to invalidate a covenant because there were other sites available on which to install the desired telecommunications tower. See Chambers v. Old Stone Hill Rd. Assoc., 806 N.E.2d 979, 982 (N.Y. 2004) (restrictive covenant did not violate public policy because it "in no way denie[d] wireless telecommunications services in the [t]own"); see also Site Tech Grp. Ltd. v. Bd. of Zoning Appeals, 140 F. Supp. 2d 255, 264-265 (E.D.N.Y. 2001) (upholding a zoning board's denial of a special permit on the ground that there were alternative sites even though the alternative sites would not have completely closed the gaps in service and would have required additional antennas). Based on the facts you provided, there is no indication that the Charles Knob parcel is the only site on which the Commission could erect a tower that would provide telecommunications services to the citizens of Grant County.

Question 2: Assuming the Restrictive Covenant Is Enforceable, What Is the Scope of the Restriction?

Your letter and included documentation also seek guidance regarding the scope of the restrictive covenant. Specifically, you ask about the fact that the covenant prohibits "[a]ny use beyond what is necessary to operate the 911 system . . . on any tower or towers owned by the [Commission]." You relate that the Commission has expressed concerns that the use of the plural "towers" in the restrictive covenant could be read to limit all of the County's present and future towers anywhere in the county, not just the tower (or any future towers) on the Charles Knob parcel.

In our view, the plain language of the restrictive covenant applies only to the tower or any future towers on the Charles Knob parcel and not to towers located on any other real estate. As noted, the plain language of the provision controls as the best indication of the intentions of the parties. See Syl. Pt. 4, Zimmerer v. Romano, 223 W. Va. 769, 772, 679 S.E.2d 601, 604 (2009). The contract at issue, which contains the restrictive covenant, concerned only the purchase of the Charles Knob parcel. Fairly read, no language in the restrictive covenant or the agreement and subsequent deed suggests an intention to restrict the Commission's towers on any other real estate. See Fraternal Order of Police, Lodge No. 69 v. City of Fairmont, 196 W. Va. 97, 101, 468 S.E.2d 712, 716 (1996) ("If language in a contract is found to be plain and unambiguous, such language should be applied according to such meaning."). But even if the covenant were somehow ambiguous, a court would strictly construe any ambiguity against the grantor, here, Beacon Net. See Allemong, 178 W. Va. at 605, 363 S.E.2d at 491.

Question 3: Would a Development Board Member Who Facilitated Various Contracts on Behalf of the Development Board and a Private Company Have Had an Unlawful Conflict of Interest?

You also request an advisory opinion as to whether Mr. James M. Cookman had an unlawful conflict of interest regarding the facilitation and execution of the contract resulting in the conveyance of the Charles Knob parcel. The contract at issue involves the Commission's purchase of the Charles Knob parcel from Beacon Net LLC in 2004, as already discussed. You indicate that Cookman, one of four owners of Beacon Net, signed the purchase contract and deed on behalf of Beacon Net. But according to your letter, Cookman was also a member of the Grant County Development Authority at the time he executed the contract. The documents you sent indicate that Cookman's positions would have given him "inside" knowledge of the Commission's desire to purchase land for a 911 cell tower prior to the agreement to purchase the Charles Knob parcel.

We believe this question is best answered in the first instance by the West Virginia Ethics Commission, which has statutory authority over ethical questions and is empowered to "initiate or receive complaints and make investigations . . . of an alleged violation of [the West Virginia Governmental Ethics Act] by a public official or public employee." Id. § 6B-2-2(b). Among other things, the Ethics Act defines and establishes minimum ethical standards for elected and appointed public officials and public employees. See W. Va. Code § 6B-1-1, et seq.; see also State ex rel. Discover Fin. Servs., Inc. v. Nibert, 231 W. Va. 227, 233-34, 744 S.E.2d 625, 631-32 (2013). It establishes administrative civil and criminal penalties for public officials and employees who "exercise the powers of their office or employment for personal gain beyond the lawful emoluments of their position," W. Va. Code § 6B-1-2; Discover, 744 S.E.2d at 631-32 (citing W. Va. Code § 6B-1-2(a)), and applies "to all elected and appointed public officials and public employees, whether full or part time, in state, county, municipal governments and their respective boards, agencies, departments and commissions and in any other regional or local governmental agency, including county school boards," id. § 6B-2-5(a).

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

J. Zak Ritchie
Katlyn M. Miller
Assistant Attorneys General