September 24, 2019

Bay State firm sues Warren

WARREN – A Massachusetts tower company is suing the town for rejecting its plan to build a 165-foot communications tower on Route 97, claiming that the town’s action violates the Federal Telecommunications Act.

In a lawsuit filed Tuesday in Knox County Superior Court, American Tower, L.P., of Worcester, Mass., asks the court to remand its proposal back to the town’s planning board with the direction to approve its plan with conditions. The suit also seeks court costs and other appropriate relief.

When contacted Thursday, Town Manager Grant Watmough said that he fully expected the matter would end up in court.

“I just hope that we can come to a speedy resolution,” he said. “They’ve raised some points that may be hard to dispute.” Watmough said that attorney Paul Gibbons of Camden is representing the town in the case.

Kittery attorney Dan Thornhill, who is representing American Tower, could not be reached for comment.

American Tower has leased a 100-foot-by-100-foot square of land, located on a 7-acre parcel owned by Robert Emery. A commercial self-storage facility exists on the property.

The company, which builds the towers for personal wireless services, such as digital cellular telephones and wireless Internet connections, had its proposal denied by the planning board on Sept. 28 for several reasons.

The board ruled that the height of the tower was outside the leased lot lines; the site was located in a flat area, not a wooded area, with no existing natural buffer, and the tower would be very visible to adjacent residences; the tower could not be constructed to blend with the surrounding properties; and there is no way to mitigate the project so that it would fit harmoniously into the neighborhood, according to the lawsuit.

On Nov. 30, the zoning board heard an appeal on the proposal and it, too, rejected the tower company’s plan. The zoning board upheld the planning board’s decision on one point, which was that it did not fit harmoniously with the surrounding neighborhood.

In the court document, the tower company claims that fitting harmoniously is not a criterion to be met by any applicant under the site plan review ordinance and that it is unconstitutionally vague and arbitrary. The lawsuit also alleges that the boards’ decisions to deny the project violates the Federal Telecommunications Act. The reasons for violating the act include that the boards’ decisions have the effect of prohibiting the provision of personal wireless services to Warren, that the decisions were made without sufficient findings of facts and were based, in part, upon testimony and the admission of evidence regarding environmental effects of radio frequency emissions and unsubstantiated fears of those effects.

According to the lawsuit, the language cited by the boards appears under general conditions, which allows the planning board to require conditions of approval. The document further states that the tower company had agreed to conditions requested by the board, which included landscaping, fencing and other measures.

The proposed facility calls for a free-standing, unlighted 165-foot “monopole” tower with attached antennas and space for two equipment shelters and two equipment pads within the leased plot. The facility would be reached via a 20-foot-wide gravel driveway and would be enclosed by an 8-foot-high chain-link fence. The only traffic would be from maintenance personnel who would service the facility once or twice a month.

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