CAPE ELIZABETH — The town is asking a federal judge to dismiss part of a lawsuit brought by Verizon Wireless after the company was denied permission to construct a cellular tower on an existing water tower.
Verizon wanted to build the cell tower on the tower in Shore Acres, but was opposed by some residents and the Zoning Board of Appeals. Verizon in July sued the town in U.S. District Court in Portland.
In its response, filed Sept. 9, the town claims Verizon should have filed part of its claim in federal court and the other part in state court.
Cape Elizabeth, represented by John J. Wall III of Monaghan Leahy in Portland, has requested a motion for partial dismissal of Verizon’s case on the grounds that the cell company didn’t appeal in Maine Superior Court, as required by state law.
At issue is Verizon’s claim that the water tower at 11 Avon Road meets the town zoning ordinance’s definition of an “Alternate Tower Structure,” and should be permitted. Cape Elizabeth argues the company has now run out of time to make that argument in state court, so it should be dismissed.
The town also denies Verizon’s claim that it 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.”
Verizon’s lawyer, Scott Anderson of the Portland firm Verrill Dana, said the company will file an objection to the town’s response.
“There’s no reason to split it between state and federal courts,” Anderson said. “There’s nothing really state specific in this case.”
Anderson said the town “is simply wrong” in thinking the whole case can’t be handled in federal court. He said he has a few weeks to file the objection.
In May, Verizon said 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 tower has been dry since 2007, but has an antenna to monitor water pressure and sewer pump stations for the Portland Water District.
Code Enforcement Officer Ben McDougal denied Verizon’s application. In June, Verizon requested reconsideration, but was denied by the ZBA. Under the town zoning ordinance, the board had 45 days to reconsider its decisions, but only if a mistake was recognized. Otherwise, an appeal could not be heard by the board for one year.
ZBA Secretary Joanna Tourangeau in June said Verizon’s request only raised “new twists on arguments that were made.” She said this “doesn’t constitute prior mistakes of law on the part of the board.”
In its lawsuit, Verizon said it wants to construct the tower because “service coverage in the southeastern portion of Cape Elizabeth is inadequate” and the tower would provide better service to residents of the town.
Anderson on Thursday said this is still Verizon’s overall goal and that to achieve it, and to save time, the case must be dealt with only in federal court.