ROCKLAND, Maine ― For the past year, Rockland has been immersed in a legal battle with a developer that wishes to build a 120-foot cellphone tower on Route 1 ― a proposal criticized by residents of a nearby neighborhood.
The Planning Board denied the developer’s application, stating that it was at odds with elements of the city’s code. The developer, Bay Communications LLC, swiftly sued the city in federal court, arguing that Rockland was prohibiting the company from providing widespread cell service, as it is federally mandated to do.
Rockland ultimately settled with the developer to allow the tower to be built, but the Planning Board is pushing back on the settlement agreement. The city is now at risk of being held in contempt of court.
The intricacy of the conflict in Rockland demonstrates that controlling the development of cellphone towers at the local level can be difficult because the federal regulations may supersede local rules for the telecommunications industry. Oftentimes, municipalities can find themselves legally ill-equipped to push back against a development if they don’t have strong zoning ordinances specifically dealing with cellphone towers, according to legal experts.
“Cellphone tower companies have an advantage that most developers in other industries don’t which is a big bat that the federal government has given them in the form of the [Federal Telecommunications Act],” said Stephen Wagner, a Bangor attorney with expertise in municipal law. “Oftentimes towns are caught in a situation where the [cell tower] company came before the ordinance.”
The Federal Telecommunications Act of 1996 established the set of laws and regulations around the operations of the country’s telecommunication industry, including internet and wireless service providers. The law has not been updated since its passage, despite the vast changes in technology that have occurred in the past 25 years. It’s a huge piece of legislation and very complex, according to those familiar with the act, especially for towns and cities trying to determine what flexibility they have to regulate cellphone towers.
“It can be intimidating and, perhaps by design, overly jargony,” Maine Municipal Association Director of State and Federal Relations Kate Dufour said.
The act bars municipalities from banning telecommunication towers outright, which include cellphone towers, and imposes restrictions that prevent towns from denying applications for reasons such as aesthetics or perceived health effects. However, it still gives municipalities the ability to write ordinances that control where these towers are placed within a community, Wagner said.
While Rockland has a telecommunications ordinance that deals with height requirements and other aspects of cellphone towers, it does not go as far as to specify which areas of the city these types of facilities can be located.
If a company takes a municipality to court over a denied permit application, Wagner said it can be difficult for the town to defend the denial if it doesn’t have a “carefully crafted ordinance.”
However, even if a municipality has a well-crafted ordinance that details where towers can be located, they may still face a legal challenge for denying an application. Since wireless providers are mandated by the telecommunications act to provide as much coverage as possible, if a developer can prove that placing a tower within a specific area is the only way to resolve a gap in wireless coverage, they could be successful in a lawsuit even if that placement is at odds with zoning ordinances.
Regardless of the set of circumstances, when a town or city rejects a cell tower application the threat of a lawsuit “is always the elephant in the room,” Wagner said.
Rockland isn’t the only Maine municipality that’s been sued by a telecommunications developer in recent years. In 2014, Verizon Wireless filed a lawsuit against Cape Elizabeth after the town denied the company’s application to place an antenna atop an old water tower.
The developer was ultimately successful in its lawsuit and an antenna was added to the tower. Even though Cape Elizabeth had an existing ordinance related to cellphone towers, Code Enforcement Officer Ben McDougal recalled the lawsuit experience as cumbersome.
“It gets very complex, and I was given a slew of information on the [Federal Communications Act] regulations,” McDougal said. “It is kind of dizzying.”
A judge has yet to rule on whether Rockland will be held in contempt of court or if the Planning Board can continue to fight the settlement, as it is seeking to do.
But the city is working to amend its telecommunications ordinance to make sure it is better prepared for the next time a cellphone tower developer comes to town, according to Rockland City Manager Tom Luttrell.
“No individual community knows what is coming,” Dufour said. “Boards and [city] councils and managers wear so many different hats. Occasionally things get by, but there are ways to catch up.”