Posted by: Patricia Salkin | October 22, 2015

Fed. Dist. Court in ME Reverses Decision Denying Permit to Build a Wireless Telecommunications Facility on an Existing Water Tower

Portland Cellular Partnership, doing business as Verizon Wireless, brought suit challenging the denial by the Town of Cape Elizabeth of a permit to construct a wireless telecommunications facility. Verizon’s permit called for the installation of three sets of shrouded antennas, which would be mounted on the sides of the Water Tower near its top, along with a 12 foot by 26 foot equipment shelter to be built near the base of the Water Tower to house equipment associated with the antennas. The parties cross-motioned for summary judgment on the issue of whether the Spectrum Act, 47 U.S.C.A. § 1455 (2015), preempted the Town’s ability to deny Verizon’s permit request. The parties also filed cross-motions for summary judgment on the issue of whether the Town appropriately applied its zoning ordinance.

The Spectrum Act preempts State and municipal authority to block the placement of certain wireless equipment on existing structures which already house wireless transmission equipment. Here, since there was no dispute that Verizon’s Proposal involved collocation of new transmission equipment, the Proposal’s qualification as an “eligible facilities request” hinged on whether the Water Tower was a “base station” within the meaning of the Spectrum Act. Because the Portland Water District never applied for a permit under the Town’s zoning ordinance, or under any other State or local regulatory review process, prior to installing the “supervisory control and data acquisition system” (“SCADA system”), no review or approval ever occurred and the Water Tower could not be a “base station.” Accordingly, the court found that the Spectrum Act did not preempt the Town’s application of its zoning ordinance in this case.

The court next addressed whether the proposal should be permitted under the Cape Elizabeth Zoning Ordinance. The Town argued that under a plain reading of the Ordinance, the Water Tower was used only to support the SCADA antenna and, therefore, was not “used primarily for purposes other than to support an antenna.” However, the court found that that the Ordinance was intended to reduce the number of different locations within Cape Elizabeth where antennas may be sited, and to place new antennas alongside existing antennas or on existing structures, wherever possible. Thus, the court concluded that the Water Tower was an “alternative tower structure” under the Ordinance and the CEO erred in his decision. It further found that both the federal Spectrum Act and the Town’s zoning ordinance reflected the established practice of treating antennas as an accessory use that is reasonably associated with the primary use of alternative tower structures such as water towers, and this use did not supplant the Tower’s principle use. Accordingly, the Proposal was an “accessory use” under the Ordinance and the CEO erred in concluding otherwise.

Portland Cellular Partnership v Inhabitants of the Town of Cape Elizabeth, 2015 WL 5736900 (D. ME 9/30/2015)

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