Cell phone companies suing Alton over Miramichie Hill tower site

The company that sought to construct a 120-foot cell phone tower on Miramichie Hill at 486 East Side Drive/Route 28A last year has filed suit against the town charging it with violating the Federal Telecommunications Act of 1996 by denying them permission to provide cell phone service to their customizes.

In a suit filed in U.S. District Court in Concord, Industrial Communications and Electronics of Marshfield, Ma., which develops communications facilities, has joined with RCC Atlantic (Unicel) of Minnesota and U.S. Cellular of Delaware in asking the court to direct the town’s Zoning Board of Adjustment (ZBA) to issue a zoning variance that would allow the tower to be built despite the fact it would be higher than local zoning regulations allow; it’s a request the board denied late last year.

The suit also asks the court to direct the Planning Board to grant site plan approval for the tower.

The town contends that the ZBA’s ruling is both legal and valid under federal, state and town regulations. At this point, it is relying solely on the record of more than a dozen hearings the two boards held with representatives of Industrial Communications and the other companies over the two-year period leading up to last December.

The court’s latest “discovery” list notes that the possibility of a settlement between the two parties is “unlikely” at this point. The next step in what appears will be a lengthy legal process is scheduled for January 2008.

Alton’s cell phone tower ordinance says that no tower can be more than “10-feet above the average tree canopy height of trees within an area defined by a 50-foot radius.”

In the 30-page suit, attorney Earl Duval of Woburn, Ma., who is representing the cell phone companies, claims the ZBA made several crucial errors in its ruling late last year. One is simply that it “was not based on substantial evidence in the written record . . .The ZBA’s decision essentially ignores all of the scientific and expert evidence submitted into the record and, in particular, the findings of the town’s own expert (radio frequency engineer Mark Hutchins) that a 120-foot mono-pole was necessary to close (cell phone coverage) gaps in the area.”

Another claim Duval makes is that the board’s ruling has the effect of violating that part of the federal law that a mandate that rules a municipality “shall not prohibit or have the effect of prohibiting the provision of wireless services.”

The companies say there is “currently a significant gap in the wireless services of both (Unicel) and U.S. Cellular in the East Side Drive/Route 28A” section of town… The (companies) have demonstrated that there are no other feasible alternatives to its proposed (tower) installation, that there is evidence of fixed hostility against (the companies) and that the town’s zoning ordinance is so restrictive that further efforts to obtain approvals would be fruitless.”

Originally the companies wanted to put up two cell phone towers to insure that its customers could get service without any “gaps” in Alton. They needed an exemption to the town’s cell tower height regulations to put one up on Roberts Knoll at 1439 Wolfeboro Highway/Route 28, and the ZBA complied with that request last year after a balloon test indicated that the 120-foot tower would not be visible from many areas in town.

But the board would not go along with the same request for the Miramichie Hill site. At a hearing last year, the members said a variance would violate the town’s five guidelines: it would not be in the public interest; it would not be in harmony with the spirit of the zoning ordinance passed; it would not grant substantial justice to either the town or the company; it would adversely impact the value of surrounding properties; and it would not cause undue hardship to the applicant.

Residents David and Marilyn Slade, who own a piece of property abutting the East Side Drive land, submitted a petition to the court recently claiming that their property value will suffer significantly if a tower is built nearby. “(Our) home, built in 1783, is of historical significance to the town of Alton and has been in our family since 1953,” they wrote in the motion filed earlier this summer. “The land stands in an elevated position from that of Lake Winnipesauke and other low-lying areas in the vicinity.” The proposed location of the tower would be central to the Slade’s view and would have a negative impact on their property values, they claim.