Verizon Wireless might soon be able to move forward with its plans to install antennas and other wireless equipment atop an existing Cape Elizabeth water tower after a judge ruled in its favor last week.
The lawsuit originated when Cape Elizabeth Code Enforcement Officer Ben McDougal denied Verizon a permit to install antennas on the 70-year-old decommissioned water tower, located at 11 Avon Road, in March 2014 after determining that the structure did not fit the town’s definition of an “alternative tower structure,” or meet other requirements in the town’s zoning ordinance.
In July 2014 Verizon filed a lawsuit against the town in U.S. District Court in Portland claiming that the Cape Elizabeth Zoning Board violated a federal law as well as the town’s zoning ordinance by upholding McDougal’s denial.
U.S. District Court judge Jon D. Levy decided Sept. 30 that the aging water tower, owned by the Portland Water District, qualifies as an alternative tower structure and that installation of antennas on the water tower is permitted under Cape Elizabeth’s zoning ordinances, which were the key issues, according to Verizon’s attorney, Scott Anderson of Portland law firm Verrill Dana.
In his motion Levy said that the town erred in applying its zoning ordinance and denying Verizon a permit.
According to Anderson, the wireless company will meet with the Planning Board within the next couple months to determine whether its plan for concealing the antennas is adequate, among other requirements.
The Portland Water District has not stored water in the tower since 2007, but continues to maintain and operate an 18-foot-tall antenna on the tower, which it has used to communicate with the Cape Elizabeth treatment plant. Verizon signed a five-year lease with the water district in late 2013.
Verizon wants to install three sets of wireless communication antennas around the top of the water tower which would be covered with fiberglass shrouds. The project would also include construction of a 12-by-26-foot shed near the base of the tower to store equipment, and the tower would not be lit or expanded.
“We believe that the antennas are completely concealed as they are covered entirely by a shroud,” Anderson said. “Unlike church steeples and other alternative tower structures, it is not possible to install the antennas inside the tank, even when it’s not full of water.”
In its lawsuit, Verizon said that the 80-foot-tall water tower is an eligible facility under the Federal Spectrum Act because its proposal would not substantially change the physical dimensions of the Avon Road structure. It has also argued that the town’s zoning ordinance permits the installation of wireless equipment on alternative tower structures, such as the water tower.
Levy also decided last week to uphold the town’s contention that the Spectrum Act does not apply to Verizon’s permit request. Verizon argues that the Spectrum Act required the town to issue the company a permit.
McDougal said the Town Council could either refer Verizon’s application to the Planning Board for site plan review and issue a building permit or appeal the court’s decision.
“If they choose not to appeal, I will reach out to Verizon and confirm that they want to move forward with the application,” McDougal said.
He added, “Once the Planning Board approval is obtained, I will issue a building permit to add the equipment and they can begin the installation.”
In an email to Town Manager Mike McGovern last week McDougal said that the town’s attorney, John J. Wall III of Portland law firm Monaghan Leahy, who is representing the town in the case, “does not see any obvious way to win an appeal substantive enough to overturn the overall conclusion.”
Throughout the last year, residents have voiced their concerns about Cape Elizabeth’s lack of cell phone coverage at meetings and through an online petition. Residents said that having insufficient cell service in the southeastern portion and other areas of Cape Elizabeth is a nuisance and is unsafe.
Meanwhile, some residents have spoken against the proposal claiming the cell tower would create noise, increase traffic, lower property values and have a negative visual impact on the nearby neighborhood. In February, Levy granted a motion to allow Cape Elizabeth residents Priscilla Armstrong, Pavel Darling, and Brad Kauffman to intervene in the case due to their proximity to the water tower, but this week they declined to comment on the case.
According to Anderson, Verizon is pleased that the judge found the existing water tower to be a suitable location for installing antennas, and is eager to start the project.
“Verizon Wireless is very pleased that this project can now move forward,” he said. “We’re hopeful that we’ll be able to get a permit from the Planning Board and commence construction right away.”
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