Topsham selectmen back away from settlement of cell tower lawsuit

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TOPSHAM — The town will continue to fight a lawsuit challenging its refusal to allow a cellular communications tower, after the Board of Selectmen decided not to send a proposed settlement to next month’s special Town Meeting.

Under the terms of the deal proposed by Mariner Tower, the town would have allowed Mariner to install a “monopine” structure – a cell tower camouflaged as a pine tree – at 14 Oak St. The tower would have been subject to the conditions and specifications called for in the latest version of Mariner’s application to the Planning Board.

Mariner would have agreed to never extend the tower above 75 feet, and the company would have reimbursed Topsham for $10,000 in attorney fees.

Bernstein Shur attorney Lori Dwyer, who is representing Topsham in the litigation, said the cost of litigation so far has been between $15,000 and $20,000.

In June, the Planning Board denied Mariner Tower’s application to build a 75-foot monopole tower at 14 Oak St., in Topsham’s Heights neighborhood. The company required 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 last July in federal court to obtain the permits the Planning Board denied. The U.S. District Court lawsuit seeks an injunction and a conditional use permit, as well as every other permit required for the tower to be built and operated.

T-Mobile withdrew from the case last September. 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 is retroactive to April 1, 2o10.

The Board of Selectmen’s unanimous decision on Jan. 21 keeps the dispute on track for a trial scheduled to begin Aug. 5.

Dwyer said the federal Telecommunications Act imposes five limits on what local authorities may do when a cell tower application is received. Only two of those are at issue in this case, she said.

The first is a “substantial evidence” claim. Under federal law, Dwyer said, any decision by a state or local government to deny a request for placement, construction or modification of a cell tower must be in writing and backed up by substantial evidence in a written record.

Dwyer said the court will “determine whether a reasonable mind could come to the conclusion that the Planning Board came to.”

The second is the “effective prohibition” claim, which says a town cannot ban, or have the effect of banning, wireless service.

Mariner must show the court that there is a significant gap in coverage in the area where it proposes to build the tower, Dwyer said, and that there is no feasible alternative site.

“Put simply, the burden is on Mariner in court to show that there’s … a gap in coverage, there’s no feasible alternative,” Dwyer said. “so it’s going to be fruitless to go back and keep trying to find alternatives (to fill the gap), because they’re just not there.”

She noted that while the substantial evidence claim could be deemed moot as a result of the November vote, the same does not apply to the effective prohibition claim, which she said could produce “full-blown litigation.”

“This case is really about this claim,” Dwyer said.

Regarding the proposed settlement, she said “as with any case, of course, we wouldn’t be here if there weren’t the risk that the town could lose in the litigation. And that means that the town could spend a whole lot of money defending a case and going to trial in federal court, and ultimately not prevailing, and winding up with the tower that was proposed.”

Cliff Goodall, an Augusta attorney who represents several Topsham residents who oppose the tower, told selectmen that “the Town Meeting does not have … the authority to grant you the right to settle. … They do not have the authority to authorize you to ignore ordinances. They do not have the authority to authorize you to void a Planning Board decision.”

Goodall added that “to the extent that this says we’re looking to the town to vote to authorize us to do this, you are in effect looking for political cover, and it is an advisory warrant article only.”

The flip side of it, he said, is “whether your oath to uphold the ordinances of the town of Topsham also permit you to settle and to ignore the referendum vote.”

Goodall argued the “playing field” is tilted in favor of the town and that Mariner is unlikely to win the lawsuit. He said establishing the burden of proof that there are no alternatives to 14 Oak St. “is a very technical battle.”

He said the suggestion of a settlement is premature, “because you don’t know what the experts are going to say.”

Goodall said the town’s expert witnesses may present Mariner with a disadvantage, and that the company could be ready to “fold their tent and go home.”

Elm Street resident Liz Armstrong agreed with keeping the settlement off the warrant. She noted that in its settlement proposal, Mariner had not “even sweetened the pot to tell us that they’ll cover $19,000 or $20,000 of our legal expenses. So I’m really thinking that they’re trying to find a way to get what they want on the cheap, and we’d be selling ourselves incredibly short to take them up on this proposal.”

Chris Ciolfi, chief development officer for Mariner Tower, declined on Wednesday to comment on the Board of Selectmen’s decision.

Alex Lear can be reached at 781-3661 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.