CAPE ELIZABETH — A federal judge has ruled in favor of Verizon Wireless in its lawsuit against the town over placement of wireless communication antennas on top of an existing water tower.

U.S. District Court Judge Jon D. Levy on Sept. 30 ruled the town was wrong when it said the company had no right to build on top of the empty town-owned water tower on Avon Road in Shore Acres.

Now Verizon will go before the Planning Board for site plan review.

The tower provided backup water storage, primarily for the fire department, for more than 60 years; it was drained in 2007, when upgrades to the town’s pipe system rendered it obsolete.

The dispute began after Code Enforcement Officer Ben McDougal early last year denied Verizon’s application to put an antenna on the 70-year-old tower at 11 Avon Road.

Verizon requested reconsideration in June 2014, but was denied by the Zoning Board of Appeals. Verizon sued the town in July 2014 in U.S. District Court in Portland.

There were two claims by Verizon against the town, one of which the judge upheld. Levy said the town was wrong when it said the proposed tower doesn’t meet the town zoning ordinance definition of an “alternate tower structure.” 

Although the tower has been dry for eight years, it has an antenna mounted on it to monitor water pressure and sewer pump stations for the Portland Water District. Levy said wireless antennas are therefore an alternative use to the tower’s original purpose.

Verizon lawyer Scott Anderson of the Portland firm Verrill Dana said that under the ordinance, antennas aren’t allowed as a primary use, and Verizon’s antennas won’t be the main purpose of the tower.

“Look, no matter how important cellular service is, toilet use is more important, so Verizon will continue to be an accessory use” to water storage, Anderson said.

The judge ruled in favor of the town on Verizon’s other claim, that town violated the federal Spectrum Act.

The act says a municipality “may not deny, and shall approve, any eligible facilities’ request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”

Anderson said the court found that the tower didn’t meet Spectrum Act requirements because the existing antenna was mounted in the 1980s, when permits weren’t required. Because of this, the judge ruled the tower isn’t a base station.

Anderson said the Spectrum Act only applies to towns with previously permitted antennas.

Although Verizon’s claim about the Spectrum Act didn’t hold up, Anderson explained that the cellular company only needed to win one claim to win the case. He said the town would have had to successfully defend both claims to keep Verizon from constructing an antenna.

Anderson said Verizon and the town will be going back to the judge on Oct. 21 for a discussion about moving the issue back to the Planning Board. McDougal could approve construction of the antennas without the board’s approval, but concealing of the antennas needs to be discussed first. 

“We think those are minor issues,” Anderson said. “The whopper issue has been resolved.”

According to the town’s website, McDougal plans to approve the application once the Planning Board reviews and accepts it.

“If the Planning Board approves the application, I will issue the building permit for the antennas and associated ground structure,” McDougal said.

Anderson said he hopes the Planning Board finds no issue with how Verizon plans to conceal the antennas. 

“We hope this will resolve the issue so we can put better cell service in town,” he said.

Kate Gardner can be reached at 781-3661 ext. 125 or kgardner@theforecaster.net. Follow her on Twitter: @katevgardner.

A federal judge ruled Cape Elizabeth must allow Verizon Wireless to put wireless service antennas on this Avon Road water tower.