May 30, 2020

Residents fight 460-foot tower > Landowners claim rights violation

MACHIASPORT — Residents angered by the sudden appearance in October 1993 of a 460-foot cellular communications tower in Machiasport have won a second chance to air their grievance before the town’s Appeals Board.

An earlier attempt by tower opponents to force United States Cellular to dismantle the antenna appeared doomed on Dec. 3, 1993, when the Appeals Board voted that it lacked jurisdiction to consider the merits of the case.

That decision is being challenged by abutting landowners Paul and Patty Swanson and Paul and Judith Nelson.

In an appeal filed Nov. 4, 1993, the Swansons argued that Machiasport Code Enforcement Officer Jefferson Zabodyn violated their rights as abutting property owners by allowing United States Cellular of Bedford, N.H., to erect the tower and a 12-by-20-foot equipment storage building on property leased from Tom Malloy near Trafton’s Hill.

United States Cellular initially sought approval for a 300-foot tower. Shortly after construction began in October, the company asked Zabodyn for authorization to go up another 160 feet for a total of 460 feet. Zabodyn agreed.

The Swansons, in their appeal, stated that the additional height approved by Zabodyn “was not known prior to the start of construction on Oct. 9 or 10.”

The Nelsons also filed an appeal on Nov. 4, stating that a site plan had not been submitted by United States Cellular before the firm received its permit.

According to the Nelsons, the tower’s lights, which “shine on residents’ lots in violation of (town) codes,” have negatively affected the community, causing a “serious infringement on the rights of residents.”

In addition, the Nelsons alleged that abutting property owners were not properly notified of the plan. As a result, the Nelsons and Swansons are asking that the company’s permits be voided and the tower be dismantled.

However, their appeals are clouded by the apparent lack of town ordinances addressing antennas at the time Zabodyn granted the permit. Also critical is a determination of whether the 30-day appeals period began when the permit was approved on March 30, or at the start of “significant construction” in mid-October.

A third issue centers on the applicability of a new Appeals Board ordinance, which was overwhelmingly approved by residents at a special town meeting on Nov. 3.

The ordinance, which for the first time gave residents in Machiasport the right to appeal Planning Board or code enforcement decisions, was enacted less than 24 hours before the Swansons and Nelsons filed their appeals.

Appeals Board Chairwoman Sandra Prescott said Monday that the board, on Dec. 30, agreed to reconsider the question of jurisdiction after reviewing correspondence from attorneys for the town, United States Cellular and the appellants.

A public hearing to reconsider the issue will be held at 7 p.m. Thursday, Jan. 20, at Fort O’Brien School in Machiasport.

The hearing had been scheduled for Dec. 30, but was tabled until Jan. 20 after a winter storm and holiday season plans forced the absence of several key people involved with the case.

Since the original hearing on Dec. 3, the Appeals Board has received letters from Christopher Vaniotios, David Lourie and Wayne Foote — attorneys for the appellants — in addition to attorneys Richard Trafton and Carletta “Dee” Bassano, who represent United States Cellular and the town, respectively.

The basis for reconsideration is in Trafton’s alleged “misinterpretation” of case law cited at the Dec. 3 hearing, Prescott said.

Have feedback? Want to know more? Send us ideas for follow-up stories.

comments for this post are closed

You may also like