ROCKLAND, Maine ― The city’s planning board is pushing back on the notion that they must issue approval for a controversial cellphone tower project, which the city agreed to greenlight through a settlement agreement with the company.
Now, the company is asking a federal judge to hold the city in contempt of court for failing to adhere to the terms of the lawsuit settlement agreement which was reached in November.
A date has not yet been set for the contempt hearing, but if a judge finds the city in contempt of a court order it could face daily $1,000 fines until the project is approved.
The attorney representing the city on the matter has insisted that the planning board must grant approval of the project, but board members say they’ve been left out of the process since the lawsuit was filed. As a result, they say the settlement requires the board to act with authority it does not have and to approve project elements that are at odds with city code ― including setback and sidewalk requirements.
“Why it never occurred to [the city council] to speak to us and have the attorney talk to us, too, about what the city should do to resolve this, it’s very irritating,” Rockland Planning Board Assistant Chair Carol Maines said. “In a way they’re asking us to do stuff that the ordinances don’t allow us to do.”
Bay Communications sued the city in March of last year after the planning board rejected its application for a 120-foot cellphone tower on Route 1. The project drew sharp criticism from residents of a nearby residential neighborhood who said the tower would negatively impact the value of their properties.
In its lawsuit, the company accused the city of preventing it from fulfilling wireless service needs. Communications companies are mandated by federal law to provide as sweeping coverage as possible.
Members of city council were against the project at the time it was proposed because they felt it wouldn’t look aesthetically pleasing to have a cell tower at one of the main entrances to the city. However, with the placement of cellphone towers being regulated by the Federal Communications Act of 1996, the city was warned by its attorney that municipalities have little regulatory authority over these types of projects.
After consulting with two attorneys, the city ultimately agreed to settle with Bay Communications in November instead of fighting what councilors were told was a losing battle.
“This battle in court is not winnable for the City of Rockland. We all wish it were not true. But this council is not willing to spend hundreds of thousands of dollars ― taxpayer dollars ― going to the bitter end with a lawsuit that we have been told is ill-advised,” the city council said in a Nov. 6 statement.
Both the city government as a whole and the planning board were named as defendants in the lawsuit. However, members of the planning board said they only learned they were defendants after the settlement agreement was reached and approved by a judge.
At no point during the settlement process did the city’s attorney consult with the planning board or notify them that they were named defendants, Maines, who served as Rockland’s city attorney in the 1990s, said. If the board had been consulted, Maines feels they could have reached a more favorable agreement that wouldn’t put the board in a compromising position.
Aside from asking the planning board to approve the project despite some elements not being in compliance with city ordinances, the settlement also instructs the board to issue variances and permits for the project ― which the board does not have the authority to do, Maines said. Variances are typically granted by the zoning board of appeals and the code enforcement office handles the issuance of permits.
“The planning board is hardly ever in any legal difficulties. We don’t deny a lot of projects at all. There’s usually a way to get something done,” she said.
The planning board asked the city council on Jan. 5 to allow the board to seek legal counsel on the matter. However, the council has not responded to the request.
Over the last week, some residents have urged the planning board to stop fighting the settlement.
“The planning board has put us in a real pickle that is about to cost us a lot of money unless they approve the cell tower on Camden Street even though we do not want it there,” Rockland resident Connie Hayes said in a letter to the city council.
But other residents, especially those who live in the area of the proposed cell tower, are happy the planning board has not yet approved the project.
With planning board members potentially facing personal fines for failing to comply with the court order, one resident, Ananur Forma, suggested creating a donation fund to cover the fines. She personally said she would donate $100.
The city council and the city’s attorney is scheduled to meet with the planning board on Jan. 20 to discuss the matter.
Several councilors have publicly maintained that the city acted in the best interest of taxpayers by agreeing to reach the settlement. However, at least one council member has voiced sympathy for the planning board’s concerns.
“The planning board identified numerous areas where they had been left out of any discussion,” Councilor Louise McLellan-Ruff said at a Jan. 11 meeting. “Everybody is going to have an opinion and what I have seen is that the planning board feels they have not been heard, that they were ignored.”