Verizon Wireless is suing the town of Cape Elizabeth, alleging that its Zoning Board of Appeals erred when it denied the company permits to install wireless communication equipment on a tower that is no longer used for water storage.
In a complaint filed Wednesday in U.S. District Court in Portland, Verizon claims that Cape Elizabeth’s zoning board violated federal law and a town ordinance when it denied the company building permits to hang wireless equipment on a Portland Water District tower. The tower, which has not been used to store water since 2007, is located at 11 Avon Road.
The town now has three weeks to file a rebuttal to the complaint – which will happen, according to Town Manager Michael McGovern.
“The zoning board felt comfortable with the code enforcement officer’s interpretation of the ordinance,” McGovern said Thursday. “It will be the town’s position to defend the zoning board’s decision.”
Verizon has appeared before the zoning board twice this year with its proposal to use the 60-year-old water tower.
At the first meeting on May 27, Verizon’s attorney, Scott D. Anderson of the Portland firm Verrill Dana, told town officials that another cell tower was needed in Cape Elizabeth to address a ‘coverage gap’ that exists in some parts of the community. According to court records, Verizon asserts that “service coverage in the southeastern portion of Cape Elizabeth is inadequate.”
McGovern, the town manager, declined to comment when asked if he was aware of any areas where wireless service is poor or non-existent.
At the May meeting, which lasted four hours, several residents spoke against the cell phone tower proposal, claiming it would create noise, lower property values, increase traffic and have a negative visual impact on the Avon Road neighborhood.
When the company returned for a June 24 meeting, zoning board members did not give Anderson or the public an opportunity to speak and denied a request to reconsider their vote. That action lead to the civil suit being filed this week.
“Providing adequate service is a challenge in Cape Elizabeth as the town has one of the most restrictive local telecommunications ordinances in the state,” Verizon states in its civil suit.
The complaint goes on to say that the water tower would not need to be enlarged, that it won’t be lit, and that wireless equipment will be covered with a shroud.
“Operation of the facility will not result in any significant impacts to abutters or to the neighborhood,” the suit says.
Anderson, who could not be reached for comment Thursday, said in the lawsuit that the town’s denial violates the federal Spectrum Act, a law that requires a city or town to approve any modification of an existing wireless tower or base station that does not change its dimensions.
Anderson said the local ordinance also allows for the installation of wireless equipment on ‘alternative tower structures’ such as the water tower.
Michelle Clements, a spokeswoman for the Portland Water District, said the water tower was once used as a backup source of water, but in 2007 the tank was emptied and it is no longer used for that purpose.
Clements said the 80-foot tower is currently used for mounting antennas, cable and electronic equipment that the water district uses to communicate with its wastewater treatment plant.
She said the water district reached an agreement with Verizon in November to lease the Avon Road tower to the company.
Clements was not sure how long the lease would have remained in effect.
“We are not parties to the suit,” she said.
“We’ll just sit tight and see what happens with the legal process.”