ROCKLAND, Maine ― The City Council is asking a federal judge for permission to bypass the planning board so it can expedite a controversial cell phone tower planned along U.S. Route 1.
A quick resolution is needed or Rockland could be found in contempt of an agreement reached in November with the developer behind the tower Bay Communications LLC to green light the project, even though planning officials rejected it because it didn’t meet some aspects of city code.
If found in contempt of court, the city faces fines of up to $1,000 for each day it doesn’t comply with the agreement.
Councilors say it would be costly to continue fighting the project.
But the Planning Board wants a judge to scrap that agreement altogether because it was entirely left out of talks between city officials and the tower’s developer during the settlement process. Planning officials have said they cannot abide by the terms of the agreement because it calls for them to act beyond their authority and approve components of the tower that don’t comply with city codes.
The council and board filed separate motions on the matter Wednesday in federal court, essentially seeking some control in the case.
“I think it is very appropriate to give [the Planning Board] an apology. I don’t think it’s appropriate to give them legal control of this case,” City Councilor Ben Dorr said. “I think it would be appropriate to … to issue these permits ourselves and circumnavigate the Planning Board and then do whatever repairing of that relationship we have to do.”
To avoid being found in contempt, the City Council is asking the judge to relax zoning laws for Bay Communications and “direct the City’s Code Enforcement Department/Officer to issue the necessary building permits — without the board’s approval — immediately,” according to the motion field Wednesday.
Bay Communications sued the city in March of last year after the board rejected its application for a 120-foot cellphone tower on U.S. 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 the 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.
Both the city government as a whole and the Planning Board were named as defendants in the lawsuit. However, board members said they only learned they were defendants after the settlement agreement was reached and approved by a judge.
Board members feel a more favorable settlement agreement could have been reached if they were involved in the process. Now, they are trying to push back after an agreement has been reached and the city is at risk of being found in contempt of a court order.
“It is inconceivable to think that a person represented by counsel, who is supposed to adequately represent the client’s interest, can face contempt of court due to a so-ordered settlement agreement that the client has never even seen before. When the judgment comes as a complete surprise to a client, a court of law must set aside that judgment,” the board’s motion stated.
Public reaction to the matter has been split. Some residents, especially those who live in the neighborhood abutting the site where the cellphone tower is proposed, have voiced support of the board’s resistance and have donated money to its legal fees.
Others have voiced support for the council’s actions to try and bring an end to the legal fight.
“I believe that what the council is trying to do is very pragmatic,” Rockland resident Tom Marshall said.