News

City settles on cell tower off Interstate 95

By Stephen Tait
Staff Writer
Published: March 15, 2008

NEWBURYPORT — A cell tower is coming to Storey Avenue, which may be a sore spot for some residents living off Woodman Way.

With options limited by federal telecommunications law, city officials this week reluctantly settled a lawsuit brought by a cell phone company that will allow for construction of a cell tower on city-owned land.

The company, 5G Investment Trust, filed a lawsuit in federal court in late October or early November last year over the denial of a cell tower at 74 Storey Ave., land located behind Dunkin' Donuts that is not zoned for that use, said Nancy Colbert, the city's planning director.

The lawsuit was filed under the Telecommunications Act of 1996. Named in the lawsuit were the city, Planning Board and Zoning Board of Appeals for denying a site variance and minor site plan review for the tower.

For the past several months, those groups and the City Council have worked in executive session to debate strategy for the litigation. Executive sessions are closed-door meetings allowed under the state's Opening Meeting Act when dealing with certain subjects, including litigation strategy.

In the end, the city decided to settle.

"It didn't look like a case we could succeed in winning," Colbert said.

Citing the prospect of significant litigation expense to defend the lawsuit, the relatively remote likelihood of success and the advantages of locating a tower on City property, city officials decided to settle the case, according to a press release.

The Telecommunications Act gives the federal government the authority to reverse local decisions on cell towers where courts "found that the denial would prohibit the provision of personal wireless services." In other words, the city cannot bar a tower from being built if that decision denies service.

Also, the act does not allow the city to deny a permit based on environmental concerns, including the possibility of negative health effects toward people, the press release said.

"The position we were put in certainly, in many respects, is unfortunate," Council President James Shanley said. "But it is the reality given the Telecommunications Act. All municipalities are put in a tough place when it comes to that. We have very little control or say."

On the plus side, the city's land will be leased to the company for a minimum of $24,000 a year with a 15 percent increase every five years. The initial lease is for five years.

Also, the city will be able to put emergency services antennas on the tower to boost communication abilities among public safety officials, Colbert said.

Shanley said leaders came up with "the best possible solution and made the best of not an ideal situation."

In August of last year, the ZBA voted to deny the construction of a 110-foot cell tower that would be near the Village at Newburyport, a condominium complex off of Woodman Way north of Storey Avenue. About 50 to 60 people from that development attended that meeting to speak against the construction.

Omnipoint Communications and 5G Investment Trust had proposed to build a 110-foot, flagpole-style cell phone tower, equipped with antennas, coaxial cable and radio communications, at 74 Storey Ave. The land is situated between the Midas Service Shop, a car wash and the Clipper Way complex, near Dunkin' Donuts, about a block from Interstate 95.

Such towers are allowed only in the industrial park unless the ZBA grants a variance. When located outside the industrial park, cellular facilities are often put at the top of a church steeple or some other inconspicuous location.

The new location is across Storey Avenue and closer to Interstate 95, on the former access road, which is zoned for cell tower use. It will be built among trees on land near the new Welcome to Newburyport sign off the exit from the highway.

"It is a cell tower, and regardless of where a cell tower is located, someone is going to see it," Shanley said. "The country's first trillionaire will be the person to design an invisible one."

As part of the settlement, the city will release next week a 17-page Request for Proposals for a cell tower on the land, which 5G Investment Trust is required to respond to but other companies can also. In other words, all cellular companies can bid on use of the tower.

Once a proposal is accepted, the process will go back before the public in Zoning Board of Appeals and other public meetings, Colbert said.