‘We thought we had substantial reasons why we denied this application’

Tue, 11/10/2020 - 16:20

Sarah Thompson

ROCKLAND — “I can guarantee you that none of us thought that we were on shaky ground,” said Rockland Planning Board Chair Eric Laustsen. “We thought we had substantial reasons why we denied this application.”

The City of Rockland recently announced a settlement with Bay Communications, LLC, effectively allowing the construction of a communications tower on Camden Street after the LLC appealed the Rockland Planning Board denial of the telecommunication application.

In response, Councilor Valli Geiger said that this “David and Goliath” lawsuit has been painful for everyone.

During Rockland’s Monday, Nov. 9 City Council meeting, Laustsen called out the City for excluding Planning Board members from the legal proceedings, as well as leaving the Board in the dark as to what was talked about and agreed upon with negotiators.

Laustsen cited reasons that he felt made his denial of the application legitimate while also demanding that the City advise the Board as to how they should assess the future building permit.

“We still don’t know what role we are supposed to be taking on after this settlement is reached,” he said. “Are we agreeing to a 75-foot tower, which is what the ordinance allowed? Or, are we going all the way to 120-foot tower, which is what the Planning Board is authorized to determine?”

During yesterday’s meeting, via Zoom, Council members reiterated that professionals associated with the City advised that the lawsuit brought upon the City by Bay Communications could not be won, and would only put financial burden on the taxpayers.

Laustsen, however, stated differently. According to him, one height exception in a Rockland ordinance states that towers above 75-feet tall must be approved by the Planning Board. The ordinance also calls for screening, visual and auditory, from other properties and the public right of way. Laustsen felt that the landscaping and screening weren’t adequate.

“The barbed wire fencing, we didn’t see was appropriate for this project,” he said.

Another Board member with experience with property drainage was very concerned as to how wet the property was, according to Laustsen. Yet, no drainage study was submitted.

“We were not on shaky ground as far as we were concerned,” he said. “As far as the attorneys, they might think differently.”

Councilor Geiger apologized to Laustsen regarding his belief that he was “left out of the loop.” It wasn’t anyone’s intention to leave out the Board, according to her. The Council must be careful regarding their interactions with the Planning Board, so as to avoid any perception of impropriety, she said.

Councilor Ben Dorr spoke of the difficulty of not knowing how hard to fight, and how much money to spend.

“It felt like we were up against seemingly insurmountable odds after getting a number of opinions on this,” said Dorr. “It’s really unfortunate to have to do something that we recognize is not great for our community, but it didn’t feel like there were a lot of other options. Sorry to everybody that’s going to have to look at this, which is all of us.”

In the days following the City Council meeting, City Manager Tom Luttrell plans to converse with Laustsen regarding the settlement.

At the same time, Councilor Ed Glaser looks toward the future.

“We haven’t lost the war, we’ve lost the skirmish,” he said. “I want to say ‘this stinks.’ We hate being put over a barrel. But what we do have is an opportunity to look ahead. Take this to heart, figure out where we are going to go that we can keep this from happening in the future.”

Reach Sarah Thompson at news@penbaypilot.com

ORDER Authorizing Settlement Agreement – Bay Communications

IT IS HEREBY ORDERED BY THE CITY COUNCIL AS FOLLOWS:

THAT the City Council hereby approve the Agreement for Judgment in resolution of the case of Bay Communications III LLC v. City of Rockland, et al., and authorizes the City's attorneys in this matter to execute that Agreement for Judgment on behalf of the City of Rockland and to file it with the US District Court.

Sponsor: City Council Originator: City Council

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

BAY COMMUNICATIONS III LLC, Plaintiff

Civil Action Docket No. 2:20-cv-00100-LEW

CITY OF ROCKLAND and CITY OF ROCKLAND PLANNING BOARD, Defendants

AGREEMENT FOR JUDGMENT

The undersigned parties hereby stipulate and agree that:

Upon the Court's endorsement of and entry of this Agreement for Judgment,

Judgment shall enter in favor of plaintiff Bay Communications III LLC (“Bay") on Count I of the Complaint (1) vacating the March 14, 2020 decision of the City of Rockland Planning Board (the "Board") denying Bay's application to install, operate, and maintain a 120 foot Above Ground Level multi-carrier wireless telecommunications tower facility (with a 4 foot lightning rod on the top thereof), related appurtenances and access and utility routes (the "Facility") at 182 Camden Street, Rockland, Maine (the "Site"), and (2) directing the Board and the City of Rockland (the “City”) to grant all necessary special exceptions, special use classes, site plan review approvals, variances, waivers, permits and any and all other required approvals (collectively, the “Zoning Relief) necessary pursuant to the Zoning and Planning and Site Plan Ordinances of the City of Rockland, Maine for Bay to construct and operate the Facility on the Site in accordance with the Site Plan package dated 6/21/19, last revision 1/6/20, entitled "ME0041B Rockland 120-Foot Tower, 182 Camden Street, Rockland ME 04841 Knox County" prepared for Bay Communications by Wood Environmental & Infrastructure Solutions, Inc., 511 ONI Congress St., Suite 200, Portland ME 04101, Project No: 3618198681, Sheets Number: T-101, C-101, C-102, C-103, C-104, D-101, D-102, and G-101 (together, the “Site Plan").

2. By the Zoning Relief, Bay is also authorized, subject to the structural limitations of the Facility and the requirements of the applicable provisions of the Maine and City building codes (and electrical codes, if necessary), to allow additional carriers to attach to the Facility without additional zoning relief (i.e. by building permit and electrical permit, if necessary, only) or the payment of additional fees (except for customary and reasonable building permit and electrical permit fees) and that authorization specifically includes the installation of associated equipment cabinets, so long as these are located entirely within the "Proposed Compound” enclosed by a “proposed chain link fence” as depicted on Site Plan Sheet C-102, and necessary utility connections to allow for the installation and operation of a wireless communicationsfacility.

3. Pursuant to this Agreement for Judgment, Bay, the City and the Board all agree that other than the Zoning Relief no further approvals or decisions are needed from the Board, the Rockland Zoning Board of Appeals, or the Rockland City Council in order for Bay to be authorized to construct the Facility in accordance with the Site Plan. The City agrees to cause the Rockland Code Enforcement Department to issue a building permit (and electrical permit, if required) to Bay for the construction of the Facility within ten (10) business days after Bay submits complete application materials for all of the required building (and electrical, if necessary) permits.

This action is otherwise dismissed with prejudice, and with the parties to each bear their own costs and fees. All rights of appeal are hereby waived.

BAY COMMUNICATIONS III LLC By its attorneys,

/s/ Kellie W. Fisher Kellie W. Fisher David M. Kallin DRUMMOND WOODSUM 84 Marginal Way, Suite 600 Portland, ME 04101 Telephone: (207) 772-1941 Facsimile: (207) 772-3627 Email: kfisher@dwmlaw.com dkallin@dwmlaw.com

- and -

BROWN RUDNICK LLP Wayne F. Dennison (admitted pro hac vice) Brian M. Alosco (admitted pro hac vice) wdennison@brownrudnick.com balosco@brownrudnick.com One Financial Center Boston, MA 02111 Telephone: (617) 856-8200 Facsimile: (617) 856-8201