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Appeal could decide fate of Milton cell tower

Posted by Jessica Bartlett  December 23, 2013 04:41 PM

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Though proponents of a Milton cell tower say the technology is inevitable for the site, town attorneys say the decision is up to an appeals court judge.

The appeal to the 1st U.S. Circuit Court of Appeals is the second the court has seen from wireless manager Green Mountain Realty Corp. in a five-year dispute over a proposed 140-foot cell phone tower.

Though the issue has been mired in court, attorneys for Green Mountain say federal law requires that some sort of wireless technology eventually be put at the site.

“It’s uncontroverted that there is a coverage gap and it’s uncontroverted that that site is the only feasible site to address it,” said Green Mountain Attorney Robert Ciandella in a phone interview. “It’s going to happen.”

Attorneys for the town were less certain of the tower’s fate.

“A lot depends on what the 1st Circuit does,” said Milton’s attorney John Flynn. “The likelihood is at some point it will wind up in front of town boards again, but it’s also possible for the order to go back before a judge with findings.”

According to court documents, controversy over the cell tower has been ongoing since 2009, when both the Milton Board of Appeals and the Milton Conservation Commission rejected a proposal for a 140-foot cell tower off Exit 3 on Interstate 93.

Green Mountain soon filed suit in District Court, claiming that the decision violated the Telecommunications Act of 1996 by prohibiting wireless coverage in the area. The suit also alleged that town boards didn’t have enough evidence for the rejection, documents state.

When District Judge Rya Zobel sided in favor of the town in 2011, Green Mountain filed an appeal to the 1st Circuit.

The appeals court sided with the town in part, agreeing that the boards had enough evidence to make a decision, but asked the District Court to make further findings on whether or not the decision prohibited wireless coverage.

Zobel’s decision, filed in September, stated that the circumstances had changed since the boards first rejected the project in 2009.

At the time, the decision did violate the Telecommunications Act, Zobel stated. Yet since then, the initial wireless provider T-Mobile had merged with MetroPCS, lessening the coverage gap and allowing for a shorter tower at the site.

In the decision, Zobel said this present-day alternative showed wireless coverage had not been prohibited with the 2009 rejection.

Green Mountain has appealed this latest ruling to the appeals court. According to Green Mountain attorneys, the hope is for a judge to mandate a shorter tower, rather than simply reject the appeal.

“We wanted to put a tower up on that site to close the gap,” said Robert Derosier, a second attorney for Green Mountain. “Our site is the only site to close that gap, and given the merger, we feel the court should have ordered a shorter tower than we applied for.”

The new tower height would have to be 120 feet high to fill the service gap, which is experienced by upwards of 170,000 cars daily as they travel on I-93, Derosier said.

Ciandella said he feels the district court is required by federal law to order the installation of the shorter cell tower.

Regardless of the appeal, a cell tower won’t be there any time soon. Flynn said the court decision wouldn’t be decided for months.

Even with that unknown, Flynn remained optimistic.

“At least the issues are narrowed,” he said.

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