Cell tower business moves that City of Rockland, Planning Board be held in contempt of court

Thu, 01/14/2021 - 2:15pm

    ROCKLAND — The ongoing controversy in Rockland concerning a proposed cellular tower to be constructed on Route 1 in a business/residential zone took another turn Jan. 13 when attorneys filed a motion with U.S. District Court claiming Rockland and its Planning Board are in contempt for “repeated and continuing failures to comply” with a Nov. 12, 2020 judgment.

    The attorneys, Drummond Woodsum in Portland, and Brown Rudnick LLP in Boston, represent Bay Communications III LLC, the private company that wants to erect an 120-foot tall communications tower on a plot of land (182 Camden Street), near Pizza Hut and a subdivision.

    The proposal arrived in early September 2019 at the city’s planning office under the applicant named Bay Communication LLC (registered in Delaware and with a place of business in Mansfield, Mass.), through another LLC entitled Northeast Wireless Networks (NEWN) LLC and which is affiliated with AT&T, according to the application filed Rockland City Hall.

    Bay Communications LLC is in the business of developing sites for wireless facilities, as defined by federal law, to be used by providers of personal wireless services.

    It owns and operates wireless and broadcast towers, and leases space on them to wireless providers, broadcast companies, wireless data providers and government agencies and municipalities, the Jan. 13 complaint said.

    Since 2019, citizen opposition to the cell tower grew, and heated public hearings on the application took place last winter. In February 2020, the Rockland Planning Board voted against a permit for the monopole, and began crafting cell tower ordinance language, approved by the city in March 2020.

    Bay Communications LLC subsequently filed a complaint in federal court that the Planning Board decision was unlawful under the Federal Communications Act, which trumps local law when wireless service is in question.

    “The Act imposes limits on the decisions of state or local governments regarding the location, construction, and modification of personal wireless facilities,” according to the March complaint against Rockland. “Among other things, ‘if a [municipal] decision is not supported by substantial evidence... or it effectively prohibits the provision of wireless service... then under the Supremacy Clause of the Constitution, local law is preempted in order to effectuate the Act]s national policy goals.”  The complained substantiated its claims by citing a 2002 law case concerning the City of Pelham, Mass., versus a wireless tower company.

    In November 2020, the City of Rockland, acting through its Council, issued a statement that it had settled with Bay Communications LLC, and said: “None of us wanted it to end up this way. None of us wanted a cell tower in the empty lot next-door to Pizza Hut on Route 1, a street where many of us travel every day, a place near where many of us live.”

    The settlement stipulated that the Planning Board’s March 14, 2020 decision was vacated.

    But Bay Communications LLC said in its Jan. 13 filing that,  “the City and the [Planning] Board has neither granted the zoning relief or site plan review approvals required under this Court’s Judgment nor issued a building permit for the construction of the Facility.”

    Furthermore, Bay Communications LLC said that as of Dec. 31, 2020, the company has, “incurred attorneys’ fees and expenses totaling $77,038.35 in connection with the filing of its appeal to this Court, the negotiation of the Agreement for Judgment, and the entry and enforcement of the Judgment,” and wants compensation.

    If the court awards the company any of those costs, “Bay is prepared to submit a supplemental declaration detailing its fees and expenses and the additional costs incurred with respect to its motion for contempt.”

    Bay Communications is asking the court to exercise its power to issue an order directing the Planning Board to approve the application and all other permits and approvals.

    A consultant based in Florida also submitted a declaration with the court Jan. 13 and said he supported the contempt motion.

    Vicent Granese, a consultant with Transcend Wireless LLC, said that Bay Communications had been approached through city counsel to settle the disputes.

    “I am informed and believe that the City sought two separate opinions from outside counsel as to the likelihood that Bay would prevail with its appeal in connection with its settlement negotiations,” he said, in his declaration. “Ultimately, the parties, through counsel, negotiated an Agreement for Judgment that required the City and the Board to grant all necessary zoning relief, site plan review approvals, and permits with respect to Bay’s proposed Facility.”

    His declaration then said that: “On or about December 1, 2020, the Board met to consider proposed findings with respect to the issuance of the zoning relief and site plan review approval clearly promised to Bay in the Agreement for Judgment and required by the express terms of this Court’s November 12 Judgment.

    “The Board refused to grant the required relief and continued the matter to a later date.

    “On or about January 4, 2021, the City’s Code Enforcement Office acknowledged receipt of Bay’s application for a building permit with respect to the Facility, but indicated that no action on the building permit application would occur until the Board had granted the necessary zoning and site plan approvals.

    “The next day, January 5, 2021, the Board again met to consider the issuance of the zoning relief and site plan review approval required of it under this Court’s Judgment. Despite the unambiguous language of the Judgment, the Board refused to authorize the required zoning relief and approvals.

    “Instead, the Board voted to send a memorandum to the City Council asking that the Board be allowed to consult with another attorney that would represent the Board and its interests.

    “As of the date of this Declaration, the City and the Board has neither granted the zoning relief or site plan review approvals required under this Court’s Judgment nor issued a building permit for the construction of the Facility.”

    Reach Editorial Director Lynda Clancy at lyndaclancy@penbaypilot.com; 207-706-6657