Proponents promise to make a federal case of it
PLYMPTON – On Tuesday, Aug. 31, the Plympton Zoning Board of Appeals voted down the variances necessary for an application by Industrial Tower and Wireless, LLC., of Marshfield, to build a 120-foot, lattice-style cell phone tower at the corner of Center Street and Palmer Road, on a business-zoned lot by a 2-1 vote.
Board members Dave Alberti and Harry Weikel voted against issuing the variances for the proposed cell tower, despite the previous warnings of town counsel Robin Stein that they are opening Plympton up to a federal lawsuit by violating the Federal Telecommunications Act of 1996.
Board Chairman Ken Thompson voted for the project, noting afterward that his vote didn’t matter because any variances that ITW sought needed to be decided on unanimously by the board.
The meeting did not have the intensity or drama of previous meetings on the subject, as the board had already indicated which way they were leaning, although the townspeople at the hearing were visibly pleased with the ultimate result.
The hearing was brief– less than 30 minutes. The lawyer for ITW, Jeffrey Angely was still slick and could be heard chuckling from time to time in the audience; the Town’s lawyer appeared to be much more prepared than at last week’s hearing, where she acted confused as the board increasingly moved in the direction of a denial.
The public was not permitted to speak because the testimony portion of the hearing had ended, despite their being a full house.
Thompson began the hearing by warning that it was the board’s turn to continue deliberations at this meeting. Stein read the history of the hearing into the record, notably a number of continuances beginning May 24.
Stein again walked the board through their previous findings, which they hadn’t yet voted on.
She reiterated the law, noting that federal law requires local zoning ordinances to be waived should the ZBA find that there is both a significant gap in coverage and that there were no alternate sites for a tower per the TCA of 1996. Stein noted that this sort of case has been well litigated in the federal courts, both in our circuit and others.
The public had previously noted numerous other locations for a tower, most notably the First Church steeple, which Church officials claim had not been properly investigated. ITW has made claims that 7,000 to 8,000 vehicles a day pass through this alleged coverage gap. This has not been independently verified, according to officials.
Weikel next read a lengthy statement into the record as part of his deliberation, noting what he counted as 17 “significant” variances, not just the four in the application, that he believed the applicant required for the construction of a cell-tower. He noted other possible locations he found suitable, including a town-owned parcel behind the Town House.
Alberti attempted to read a letter, a source says from a previous zoning official or board member, into the record but was quickly stopped by Stein on the grounds that it was testimony, not part of the deliberations.
At that point, the Board was ready to vote as their deliberations were complete.
Stein read an affirmative motion to approve the variances, with several conditions, into the record, to which Thompson said, “So moved.” Alberti seconded the motion.
Weikel voted first, against the motion, and then Alberti voted against the motion as well.
Thompson voted last, somewhat half-heartedly, in favor of the motion.
The motion failed as the vote was not unanimous.
At that point, Stein directed the board to vote on a motion for the reasons for the denial, as federal law requires that any denial be based on “substantial evidence in the record.”
She began by reading item by item from a list she had prepared, for example, “That the proposed telecommunications tower is in the business district,” which quickly became too cumbersome because of the number of items on her list.
She and the board together decided to read the whole list of more than a dozen reasons to deny the application at once, and the board voted unanimously to approve that list. The findings will be published on or around Aug. 8, according to Stein and Thompson.
What will happen after that is not clear.
The board appears to be bracing themselves for a lawsuit. Town officials were not available for immediate comment as of press time, and a source who did not wish to be named suggested that there would be no comment from the Town.
When Stein told opposing attorney Angley that the board would meet Wednesday, Aug. 8, at 5 p.m. for an administrative meeting, he replied, “We have no reason to be there.”
When she told him that the findings would be published at or shortly after that meeting, he asked for a courtesy copy, grabbed his suit coat, said, “Whatever,” and stormed out of the room with a flourish. He could be seen talking animatedly with ITW representatives in the parking lot after the hearing.