Companies sue to overturn Topsham cell tower decision

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TOPSHAM — Two companies that hoped to build a cellular communications tower in the Heights neighborhood are suing the town and the Planning Board to get permits that were denied on June 29.

Mariner Tower, which wanted to build the 75-foot monopole tower, and T-Mobile, the service provider that would have used the tower, filed their appeal in U.S. District Court on July 28.

The two companies seek an injunction and a conditional use permit, as well as every other permit required for the tower to be built and operated.

The proposal for 14 Oak St., opposed largely by Heights residents who say such a structure is inappropriate for their residential neighborhood, was denied unanimously by the Planning Board. Since cell towers are allowed as a conditional use in the area, part of the Urban Residential Zone, Mariner’s proposal had to receive conditional approval before undergoing site plan and transmission tower reviews.

Meanwhile, residents will vote in November on whether the town should establish a ban on new cell towers in the Urban Residential Zone. The ban would be retroactive to April 1 and was triggered by a petition that accumulated 556 certified signatures.

Town Manager Jim Ashe declined to comment on the lawsuit Monday. He said the town’s attorney would review the document and respond to the plaintiffs’ attorney.

“We feel that we met all the conditions of the zoning law,” Chris Ciolfi, Mariner’s chief development officer, said Monday. “And we have a need for the site. (Topsham’s) consultants have agreed that we’ve demonstrated a need for the site, and this is the next step in the process.”

Heights resident Phin White, an opponent of the project who was involved in gathering petition signatures, said on Monday that he was surprised Mariner Tower and T-Mobile did not take their case to Topsham’s Board of Appeals.

“They’re going to look for a venue that favors their strengths, and their strength is that they have a ton of money behind them,” White said.

But he said he thinks the plaintiffs will lose, noting that in his research on communities opposed to cell towers, “I’ve noticed that there have been rulings in the last few years where, on the federal level, judges have sided with communities and their local zoning ordinances as being the appropriate way to deal with these things.”

White added that “the Planning Board should know what’s good for the town. But … (the plaintiffs) basically feel ‘no, the Planning Board doesn’t know what’s good for the town. The U.S. District Court must be the ones that rule on this,’ which is pretty funny.”

But Ciolfi said the companies “don’t see in the zoning law that … there is an appeal route for the Board of Appeals, for Planning Board denial.”

He said there is an opportunity to approach the Board of Appeals from a code enforcement officer’s decision, but there is no such process concerning the board’s decision.

Topsham Town Planner Rich Roedner said on Monday that there is no clear appeal route in the town’s conditional use standards.

The lawsuit claims that the Telecommunications Act of 1996 “contains a clear declaration of Congressional intent regarding telecommunications: to provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services … by opening all telecommunications markets to competition.”

The document also states that T-Mobile’s radio frequency engineering department found an area in Topsham with a major coverage gap for the company’s network. That area included the Heights, Winter and Bridge streets and parts of Route 201.

From the census data available to T-Mobile, about 20 percent of Topsham’s population is in that area, according to the document.

Alex Lear can be reached at 373-9060 ext. 113 or alear@theforecaster.net.

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A Maine native and Colby College graduate, Alex has been covering coastal communities since 2001, and currently handles Bath, Topsham, Cumberland, and North Yarmouth. He and his wife, Lauren, live in the Portland area, and Alex recently released his third album of original music.