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.

PLYMPTON – The heat rose in the Large Meeting Room of Town House Tuesday, July 24, both literally and figuratively as townspeople squared off against telecommunications tower applicant Industrial Tower and Wireless, LLC. Jeffrey Angley, attorney representing the applicant, was slick. The town’s attorney, Robin Stein, mumbled and was hard to understand. And several neighbors and citizens of the proposed 120-foot lattice structure seemed incensed with the ZBA’s apparent acquiescence to the applicant.

Then, a surprise turn of events changed everything.

The hearing started out as most formal hearings do. A prepared statement was read into the minutes by the chair. The applicant was asked if they had any new updates for the board, since this was the third meeting of the continued hearing on the subject. They did not. They summarized their plans to build a 120-foot lattice telecommunications tower at the corner of Center Street and Palmer Road, on a four-acre lot that is “Business” zoned but is abutted by “Residential/Agricultural” zoning. ITW is proposing an 80-foot by 80-foot perimeter fence around the tower, with a 20-foot wide access road.

The applicant admitted that the tower will be visible from many locations in town, noting only that, “there is no perfect location [for a tower].”

The company is seeking zoning relief under the federal 1996 Telecommunications Act, that, according to the town’s attorney, was created to help build telecommunications infrastructure because most cell towers do not conform to local zoning bylaws, nationally.

Angley and Stein, opposing attorneys, appeared to agree that if the applicant can demonstrate that there is a significant coverage gap in cellular service and that there are no viable alternative sites (Industrial Tower and Wireless claims that 35 sites were identified and rejected), the ZBA must grant the variances sought, they say.

The applicant claims that there is a 3.5 by 1.5-mile coverage gap in Plympton that sees 7,000 to 8,000 vehicles a day pass through.

The public was not shy in their displeasure with the proposed tower.

Rosemary German, of 63 Palmer Street, presented videos of what she said were similar towers making humming noises. Angley said the site would be passive, emitting nothing, including noise. “This is the sound of a cellphone tower. No thanks!” you can hear German say in her video above a constant buzz.

Mike Matern, who is an electrical engineer, spoke heatedly regarding the noise issue, stating that the cooling fans on the new 4G equipment boxes are really quite noisy. He noted that electrical equipment and generators would also create noise.

Matern was a co-signer of a letter from the First Congregational Church in Plympton, along with Colleen Thompson, of Main Street, stating that no one in authority at the church had been approached by the applicant or inspected the steeple as an alternate site to Palmer Road, despite the fact that it is geographically higher by 60 feet, according to church officials.

“In addition to making sure that the information on which you will base your decision is as complete as possible, our interest in this hearing is not altogether altruistic. We have begun investigating the possibility of a wireless installation in the steeple. It is therefore of great interest to us to understand how the church was investigated and why it was rejected,” the letter states.

“How did you inspect the church if you didn’t come?” asked former selectman Colleen Thompson.

Angley, who at the last meeting stated that the church had been identified and rejected as a possible site, seemed taken aback by the letter as it was read into the record.

“You don’t need to go inside to know it won’t work,” an Industrial Wireless and Tower representative at the meeting said, stating that the height and girth of the steeple are prohibitive to new 4G technology. “We used to put equipment in church steeples. We don’t do that anymore.”

Carolyn Thompson responded that the Unitarian Universalist Church on Tremont Street in Duxbury has a four-array antenna inside its steeple.

There are several cellular arrays in church steeples in the area, including Central Square, Bridgewater, where there is a cellular array in the steeple of the Swedenborgian Church.

Other residents were concerned about the aesthetics of the tower, the rural and “country” nature of the town and the accuracy of the “balloon test,” in which a red balloon was floated to 120-feet to determine the exact visibility of the tower several weeks ago. Wetlands concerns were also raised.

Arthur Morin, of 11 Granville Baker Way, read the emailed comments of across the street neighbors who were not able to attend, claiming that even Police Chief Patrick Dillon witnessed the balloon from the historic district. Morin also added his own comments: “We choose to live in a rural community because we like the aesthetics…this erector set is ugly…this is all about making money.”

Carolyn Bartlett, who owns the house/business directly across the street from the proposed cell tower access road, argued that wind blew the balloon downward during many of the photographs presented by the applicant and she has photographs from the same location showing the red balloon plainly visible.  She furthered that many of the trees in the area are deciduous, not evergreen and will lose their leaves, making the tower even more visible in the fall and winter.

She got into a lengthy exchange with board chair Kenneth Thompson, a normally cool-headed character who lost his temper briefly, stating that Mrs. Bartlett was conflating different locations at once, including her house and the historic district.

When Thompson pointed out that both the state and local historical boards had sent letters that indicated the project does not concern them from a historic perspective, Bartlett asked incredulously, “You don’t believe the police chief?”

Other residents, notably Deborah Anderson, of Elm Street, and Art Morin of Granville Baker Way, encouraged the board reject or table the decision outright and seek proposals from other vendors or at least to repeat the balloon test in the fall after the leaves have fallen.

Thompson responded that they have to look at the case of the current applicant before the board.

As the residents finished vocalizing their long list of objections to the proposed project, the hearing moved into the deliberation phase, in which the board members discussed their vote.

Stein then proceeded to walk the members through the steps to approve the application, in what was beginning to appear to be a foregone conclusion. Stein indicated that the board’s hands were tied in denying the application.

“Do you find that there is a significant coverage gap?”

The board “deliberated,” mostly just head nodding, and Thompson responded, “Yes.”

“Do you find that there are no viable alternative sites?”

The board “deliberated,” again mostly just head nodding, and Thompson responded, “Yes.”

“So that triggers the protections under the 1996 T.C.A.”

Then the question of unanimity came up. A board member asked if the vote needed to be unanimous, and Stein responded affirmatively.

That’s when the mood in the room shifted dramatically.

Newly appointed ZBA member Harry Weikel immediately said, “I’m here to protect the people…that’s the only reason I accepted this appointment,” indicating the way he might vote.

Town Counsel Stein directly questioned Weikel, apparently to make sure he understood the implications of what he was saying.

Then, David Alberti, former board chairman, now board member, said he would support Weikel.

Thompson acknowledged that the vote appeared to be heading to a denial of the application.

Stein said that any denial must be based on substantial evidence in the local bylaw and warned that the town may end up defending this decision, if it is a denial, in court.

The applicant’s lawyer asked for a decision immediately. He even offered to build a “monopole” instead of a lattice structure if the ZBA preferred to incentivize the board to vote affirmatively for them.

They asserted that the board did not have to deliberate any further or collect evidence regarding the local zoning bylaw– advice that would appear to put the town at a disadvantage should any ruling be challenged in court. Stein called for a five-minute recess to do more research and left the room with her cell phone in hand.

When she returned, she asked for a week’s continuation of the hearing. The board voted to continue the hearing to Tuesday, July 31, at 6:30 p.m.

Only one “no” vote out of three is needed for the proposal to be denied. As of this week, it appears that the cellphone tower application will be denied and might very well end up in court. But, residents will have to wait another week to see how the board finally votes.

Much can change in one week.

After the hearing concluded, when asked if the board was committed to denying the application, Thompson said, “You’d have to ask us all individually.”  Weikel instantly chimed in with, “I am.”