ROCKLAND — “I don’t think this attorney has been fair to us,” said Board Chair Eric Laustsen. “I think he’s put us, personally, in jeopardy. And I resent that. We have had nothing to do with this made-up Findings and Facts. For us to have these threats –I don’t consider him my attorney, so his letter was threatening – Contempt of court, talking about fines on us personally. I didn’t like that.”

For a brief few moments during the December 1, Rockland Planning Board meeting, in Council Chambers, emotions rose as Board members sought alternatives against an action deemed necessary by heads of the City.

Either sign the attorney-generated Facts and Findings for a new monopole cell tower at 182 Camden Street – which the Board believes to be full of inconsistencies and falsities – or risk putting the City in contempt of court.

According to City Manager Tom Luttrell, who attended the meeting, to refuse to sign will result in monetary penalization of the City, and will require the City to defend the contempt charge.

To return to U.S. District Court, where Bay Communications filed suit against Rockland and members of the Planning Board, means Rockland footing the bill for the City’s attorney fees, the legal fees for Bay Communication, and fines for everything that the court deems is appropriate.

Ultimately, the Board postponed the signing until the next meeting while they seek legal advice from an attorney of their choosing – someone with experience in Planning Board affairs.

Board members took offense to multiple aspects of the entire ordeal, including being a party to a lawsuit without being granted a voice. Having only had a day or two to read the settlement’s version of findings prior to the December 1 meeting, Board members vented steam regarding the Rockland attorney’s perceived disinterest to their situation, as well as the City Council’s takeover of proceedings.

“I was shocked to find out that we were a defendant,” said Planning Board Chair Eric Laustsen. “We never received any kind of notification. We were never served.”

In the past week, well after the settlement was finalized, the attorney representing Rockland, James Katsiaficas, of PerkinsThompson, offered to converse with Board members via Zoom. However, Laustsen and Board member Carol Maines refused the platform, either not having ever used Zoom, or not finding it helpful to their Board discussions.

Luttrell acknowledged that the settlement was drafted behind closed doors by the attorneys for Rockland and Bay Communication, and then accepted by City Council. Those actions are now forcing Board members to sign approval for a settlement they believe to be false based on a list of substantial evidence against the permit.

The Council did not attend the initial Planning Board hearings or site visits in February and March, according to Maines.

“They didn’t do any of those things,” she said. “They didn’t look at the ordinances and go down and look at the plot. In other words, they were really flying blind as to what the City was supposed to do because they didn’t have any of the evidence.”

Bay Communications made a complaint, dated March 17, claiming that the Board never issued a written decision, as was required. In fact, that written decision came out March 14, according to Board member Carol Maines.

“That certainly should have been caught,” she said. “Apparently the complaint is asking the judge to assume that we simply ignored the application, didn’t make any substantial findings of any kind.”

Findings include 27 items, plus the decision, and roughly a dozen of them made it to the Board’s list of reasons for application denial.

The complaint claimed that the Board was wrong to apply the overlay zone. Now, the finding that the Board must sign onto states, “the parcel is in the Commercial C2 zone and in the Commercial Corridor Overlay Zone.”

Another Bay Comm generated finding states that the Planning Board believes sidewalks at the site to be inappropriate, and waived the requirement entirely. Yet, sidewalks are required there, just as they were when Home Depot, Pizza Hut, and Goodwill came to the area, according to Laustsen.

The complaint claims that the Board’s denial prohibits personal wireless service.

“Moreover,” read Maines, “the Board’s decision is not supported by substantial evidence because there is no written decision….This was drafted several days after our written decision, which was quite lengthy.”

The settlement demands that the Board ignore the hydrological study that they wanted, in keeping with the stream that runs through the site. The settlement demands that the Board agrees that the cell tower is compatible to the area based on the zone being entirely commercial. The Board, in turn cited Pen Bay Acres, the adjacent apartment complex, and private housing nearby. The new draft also removed the clause used on every building permit – the property must be returned to its original state at the end of the owner’s term.

In one paragraph, according to Maines, the settlement states that the Commercial Overlay Zone does not apply to this development as the pole is not a structure.

“It’s a structure in paragraph 8,” she said. “But not in paragraph 10.”

On the advice of Katsiaficas, along with the same advice given by second opinion by another attorney, Council opted to save hundreds of thousands of dollars in court fees, leaving the Planning Board to wade into a wake of new precedents.

“We’re all very confused by this,” said Laustsen. “I don’t want to sign anything that’s false. I’d rather pay the fine off than sign....We really are in the dark.” 

To have another public meeting would be futile, according to Luttrell. You could have a hundred people come and protest, he said. But, the lawsuit has already been settled.

Newly re-elected City Council member Louise MacLellan attended the meeting and offered support to the Board.

“The fact that you and other Commissions – the Harbor Management Commission – have been left out of things, and it always costs the taxpayer money,” she said. “The Council has been very insular. That’s going to stop. There’s no reason for us to have volunteers get together – who are much smarter as a group than we are individually – and then we choose not to include you in a process that’s very important. It’s embarrassing for me to know that a Council saw that letter and said, ‘well it must be so. It’s written.’”

Reach Sarah Thompson at news@penbaypilot.com