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Verizon sues Cape Elizabeth over cell tower denial

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Verizon sues Cape Elizabeth over cell tower denial

CAPE ELIZABETH — Verizon Wireless is suing the town after the Zoning Board of Appeals last month refused to reconsider its denial of Verizon's request to construct a cell tower.

Verizon wants to build the tower on an existing water tower at 11 Avon Road.

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.

Several residents on and near Avon Road have opposed the plan. They have qualms about aesthetics, and concerns about noise from the equipment's generators and HVAC systems, expectations of increased traffic from service vehicles on their dead-end street, and believe the project would have an overall negative impact on the neighborhood's quality of life.

The lawsuit, filed in U.S. District Court in Portland, claims the ZBA violated the Spectrum Act, which states that 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 said the addition of the cell tower to the water tower will not change the physical dimensions of the tower, and that under the Spectrum Act the town is required to approve its request.

In the complaint, Verizon said the addition of the cell tower wouldn't affect neighbors, because the water tower has been in place for 60 years. The company said the tower will not be lit, except for one small down-facing light, and will not produce noise, except for noise generated by a small air conditioner.

Verizon also said the tower will not produce an increase in traffic, except for a monthly maintenance visit to be made during business hours. 

The other law Verizon said Cape Elizabeth has violated has to do with the zoning ordinance's definition of "Alternate Tower Structure." Verizon said this definition includes water towers, and because the cell tower would be built on an existing water tower, the town should permit its use.

Verizon, which is represented by Scott Anderson of the Portland firm Verrill Dana, also asked the court to issue an injunction that would require Cape Elizabeth to issue a permit for the construction of the cell tower.

Town Manager Michael McGovern said the town plans to defend the ZBA decision.

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