Cape Elizabeth cell tower dispute to stay in federal court

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CAPE ELIZABETH — The lawsuit between Verizon Wireless and the town over the company’s desire to put a cell tower in Shore Acres will be heard in federal court.

Verizon’s lawyer, Scott Anderson of Verrill Dana in Portland, said the U.S. District Court denied Cape Elizabeth’s argument that the federal court shouldn’t review the case because it is a town issue.

The town has until March 3 to file a response to the decision.

The court also decided to allow neighbors of the proposed cell tower to intervene in the case. The neighbors are opposed to Verizon placing an antenna on top of a 69-year-old, unused water tower at 11 Avon Road.

Three Avon Road residents – Priscilla Armstrong, Pavel Darling, and Brad Kauffman – filed papers asking to be involved in the case because of their proximity to the proposed tower. 

Anderson said he understands why they’re being allowed to participate in the case.

“To be fair to the neighbors, this is an important issue to them,” he said.

There is also a campaign by Cape Elizabeth residents who want a cell tower for communication and safety reasons. As of Wednesday, the online petition had 180 signatures of people siding with Verizon.

The dispute began after Code Enforcement Officer Ben McDougal denied Verizon’s application for the tower. In June 2014, Verizon requested reconsideration, but was denied by the Zoning Board of Appeals. Verizon sued the town in July in U.S. District Court in Portland.

Verizon claims federal law allows it to place an antenna on top of the 69-year-old water tower, regardless of the local zoning ordinances or site plan requirements.

The company argues the town violated the federal Spectrum Act, which says a municipality “may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”

Anderson said all paperwork for the case needs to be submitted by May or June. He said he expects the judge to make a final ruling in the case either at the end of summer or in the fall.

Kate Gardner can be reached at 781-3661 ext. 125 or kgardner@theforecaster.net. Follow her on Twitter: @katevgardner.

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I'm a reporter for The Forecaster covering Freeport, Yarmouth, Chebeague Island, and Cape Elizabeth. I'm from a small town in NH no one's ever heard of. When not reporting, I can be found eating pasta and reading books, often at the same time.