Judge throws out cell tower lawsuit against Topsham

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TOPSHAM — A federal judge in Portland on Monday dismissed a lawsuit that challenged the town’s refusal to allow construction of a cellular communications tower.

U.S. District Court Judge John Rich III granted the town’s request for summary judgment. Town Planner Rich Roedner said Wednesday that Rich decided there was no need for a trial based on the argument that the appellant, Mariner Tower, did not properly follow the administrative appeal process.

Had the judge decided that Mariner did follow proper procedure, the lawsuit would have continued and the judge would have considered the merits of arguments by Mariner and the town, Roedner said.

Chris Ciolfi, chief development officer for Mariner Tower, declined to discuss the decision, except to say that “we’ve got to take a look at (the matter) and see what our next steps will be.”

The case began after the Planning Board denied Mariner’s application to build a 75-foot monopole tower at 14 Oak St., in Topsham’s Heights neighborhood, in June 2010. The company needed conditional approval for the tower before undergoing site plan and transmission tower reviews.

Mariner and T-Mobile, which would have been a carrier on the tower, sued the town in July 2010 to obtain the permits the Planning Board denied. The lawsuit sought an injunction and a conditional use permit, along with every other permit required for the tower to be built and operated.

T-Mobile withdrew from the case in September 2010. Topsham residents voted 2,358 to 1,933 two months later to ban new cell towers in the town’s Urban Residential Zone. The ban was retroactive to April 1, 2010.

Alex Lear can be reached at 781-3661 ext. 113 or alear@theforecaster.net. Follow him on Twitter: @learics.

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.