CAPE ELIZABETH – Nearly eight months after the town of Cape Elizabeth denied Verizon Wireless a permit to install telecommunications equipment on an existing water tower, responses to a lawsuit filed by the cellular company in July continue to be tossed back and forth between both parties.

Represented by John J. Wall III of Monaghan Leahy in Portland, the town filed a seven-page response to Verizon in U.S. District Court on Oct. 14, restating its previous claim that the company failed to pursue an appeal in Maine Superior Court as required by state law, or Maine Rule of Civil Procedure 80b, and therefore, that part of the lawsuit should be dismissed.

Verizon filed its initial complaint against Cape Elizabeth in U.S. District Court in July, alleging that the town’s Zoning Board of Appeals violated the federal Spectrum Act as well as the local zoning ordinance when it decided to uphold the code enforcement officer’s decision to deny Verizon’s permit.

In an email to the Current on Monday, Wall said, “As our pleadings reflect, the town disagrees with the plaintiff’s contentions in this matter and stands behind the decision reached by the Zoning Board of Appeals.”

Represented by attorney Scott D. Anderson of Verrill Dana law firm in Portland, Verizon filed a response on Sept. 30 asking a judge to deny the town’s request to dismiss count two of the lawsuit. According to Verizon, this portion of the complaint “seeks review of the town’s interpretation of its local ordinance governing co-location of wireless telecommunications facilities on existing structures.”

According to Wall, “The town has argued that the court should abstain from hearing count two because Maine has adopted a coherent system for reviewing zoning board decisions that could be disrupted” if routinely addressed in federal court.

But Verizon asserts that, “Given the siting of these facilities requires consideration of federal, as well as local, concerns, there is no coherent state policy that (the federal) court would disrupt with its review of count two.”

In March, the town’s Code Enforcement Officer Ben McDougal denied Verizon’s building permit application to install telecommunications equipment on an existing water tower at 11 Avon Road, which is owned by the Portland Water District and has not been used for water storage since 2007.

Verizon is proposing to install wireless equipment on the tower to “fill a significant coverage gap in the southeastern area of Cape Elizabeth” and other parts of the community.

While several residents have spoken against Verizon’s proposal, citing lowered property values, increased traffic and negative visual impact on the Avon Road neighborhood, Verizon claims that its antennas and other equipment would not expand or extend the size of the existing structure. It also would not be lit and the equipment would be covered with a shroud, according to the company’s lawsuit.

“In 2012 Congress enacted the Spectrum Act, which requires municipalities to approve requests for co-location on existing wireless ‘towers’ and ‘base stations’ provided there is no substantial change in the existing structure,” according to Verizon’s response.

Verizon claims that using the water tower should be permitted under the town’s zoning ordinance because it fits the ordinance’s definition of an “Alternate Tower Structure.” It also says in its lawsuit that the 80-foot-tall water tower is an “eligible facility” under the federal Spectrum Act, because its proposal would not “substantially change” the existing structure’s physical dimensions.

In November 2013, Anderson sent a letter to McDougal stating that the federal Spectrum Act “pre-empts” the local authority and that the town is required to permit the antennas as long as Verizon’s application complies with federal law.

“If these federal standards are met, a municipality may not deny and shall approve the request, regardless of whether the local zoning or land use laws allow the proposed co-location,” according to his Sept. 30 response.

McDougal said, “Even if the Spectrum Act was applied, the applicant’s proposal would substantially change the physical dimensions of the base station,” in this case, the water tower. In addition, under the zoning ordinance the water tower is not considered an alternative tower structure and is therefore not a permitted use in the Residence A zoning district.

Though the town believes that the complaint should be filed in both state and federal court, Anderson said the regulation of cell towers is “not simply a local issue,” and can be most appropriately addressed in one federal court proceeding.

“Although the town might prefer a regulatory system that deferred entirely to municipal review, that is not how wireless facilities are sited in the United States,” according to Verizon.

“The question of whether Verizon may co-locate its antennas on this water tower is a blended issue of federal and local law,” the motion reads. “Repeatedly, these disputes have been resolved in a federal forum, and for good reason.”

Copy the Story Link