By Victor Tine
Staff writer
May 16, 2008 03:51 am NEWBURY — Communications giant T-Mobile has abandoned its effort to erect a 105-foot cell tower at Iron Moon Farm on High Road, ending a two-year battle between neighbors and the cell phone company over the impact the tower would have on the local landscape. Attorneys for the company and the town filed a one-sentence "stipulation of dismissal" Tuesday in U.S. District Court in Boston. The stipulation drops the case against the town and the Zoning Board of Appeals, "with prejudice, without costs of attorneys' fees and without right of appeal." The stipulation does not specify a reason for the dismissal, and company executives couldn't be reached for comment yesterday, when the end of the litigation was announced by appeals board Chairwoman Evelyn Noyes. Omnipoint's application to the ZBA in 2006 ignited a wave of protest, especially among residents of High Road. The tower would have been located between the Upper Green and the Lower Green along a roadway designated as a "scenic byway" and zoned for residential and agricultural uses. Omnipoint had sought three variances from the zoning bylaw to erect the tower on the grounds of Iron Moon Farm. The company needed a variance to build in the agricultural-residential district and other variances for the height of the tower and its placement on the lot. The ZBA held more than 10 hours of hearings on the case, starting in September 2006 and continuing to January 2007 and finally February. The town has incurred $25,812 in legal expenses while fighting T-Mobile's appeal of the ZBA decision, Newbury Finance Director Charles Kostro said. A T-Mobile subsidiary, Omnipoint Communications of Norton had appealed a February 2007 ZBA denial of its application to place a cell tower at the 186 High Road farm owned by Colin and Wendy Smith, and Colin Smith's mother, Shirley. The appeal alleged that the ZBA had violated the federal Telecommunications Act of 1996 when it rejected T-Mobile's proposal. Associate Town Counsel John E. Bowman Jr., who represented the town in the litigation, said a judge had referred the parties to mediation at the town's request. Bowman said town officials had identified possible alternative locations for the cell tower and the company was planning to do a "crane test," bringing a crane to some sites and testing the strength of the cell phone signal. That test will not go forward, Bowman said. He said the company would need to start the process from the very beginning if it selects another site in Newbury where zoning does not permit it. "Square one is a good way to put it," he said. The town has designated an area along Route 1 as the Wireless Communications Service Overlay District, where cell towers are allowed without the need for a variance. The federal court's dismissal of the lawsuit means that the decision by the ZBA is final, Bowman said.
—
Copyright © 1999-2008 cnhi, inc.