ROCKLAND — The continued controversy in Rockland regarding a proposed mobile tower to be constructed on Route 1 in a enterprise/residential zone took one other flip Jan. 13 when attorneys filed a movement with U.S. District Courtroom claiming Rockland and its Planning Board are in contempt for “repeated and persevering with failures to conform” with a Nov. 12, 2020 judgment.
The attorneys, Drummond Woodsum in Portland, and Brown Rudnick LLP in Boston, signify Bay Communications III LLC, the non-public firm that desires to erect an 120-foot tall communications tower on a plot of land (182 Camden Avenue), close to Pizza Hut and a subdivision.
The proposal arrived in early September 2019 on the metropolis’s planning workplace below the applicant named Bay Communication LLC (registered in Delaware and with a office in Mansfield, Mass.), via one other LLC entitled Northeast Wi-fi Networks (NEWN) LLC and which is affiliated with AT&T, in keeping with the applying filed Rockland Metropolis Corridor.
Bay Communications LLC is within the enterprise of growing websites for wi-fi amenities, as outlined by federal legislation, for use by suppliers of private wi-fi providers.
It owns and operates wi-fi and broadcast towers, and leases area on them to wi-fi suppliers, broadcast firms, wi-fi knowledge suppliers and authorities companies and municipalities, the Jan. 13 criticism stated.
Since 2019, citizen opposition to the cell tower grew, and heated public hearings on the applying passed off final winter. In February 2020, the Rockland Planning Board voted towards a allow for the monopole, and started crafting cell tower ordinance language, authorized by town in March 2020.
Bay Communications LLC subsequently filed a criticism in federal courtroom that the Planning Board determination was illegal below the Federal Communications Act, which trumps native legislation when wi-fi service is in query.
“The Act imposes limits on the selections of state or native governments relating to the situation, development, and modification of private wi-fi amenities,” in keeping with the March criticism towards Rockland. “Amongst different issues, ‘if a [municipal] determination shouldn’t be supported by substantial proof… or it successfully prohibits the supply of wi-fi service… then below the Supremacy Clause of the Structure, native legislation is preempted to be able to effectuate the Act]s nationwide coverage objectives.” The complained substantiated its claims by citing a 2002 legislation case in regards to the Metropolis of Pelham, Mass., versus a wi-fi tower firm.
In November 2020, the City of Rockland, acting through its Council, issued a statement that it had settled with Bay Communications LLC, and stated: “None of us needed it to finish up this fashion. None of us needed a cell tower within the empty lot next-door to Pizza Hut on Route 1, a avenue the place many people journey day by day, a spot close to the place many people reside.”
The settlement stipulated that the Planning Board’s March 14, 2020 determination was vacated.
However Bay Communications LLC stated in its Jan. 13 submitting that, “the Metropolis and the [Planning] Board has neither granted the zoning aid or web site plan assessment approvals required below this Courtroom’s Judgment nor issued a constructing allow for the development of the Facility.”
Moreover, Bay Communications LLC stated that as of Dec. 31, 2020, the corporate has, “incurred attorneys’ charges and bills totaling $77,038.35 in reference to the submitting of its enchantment to this Courtroom, the negotiation of the Settlement for Judgment, and the entry and enforcement of the Judgment,” and desires compensation.
If the courtroom awards the corporate any of these prices, “Bay is ready to submit a supplemental declaration detailing its charges and bills and the extra prices incurred with respect to its movement for contempt.”
Bay Communications is asking the courtroom to train its energy to challenge an order directing the Planning Board to approve the applying and all different permits and approvals.
A guide based mostly in Florida additionally submitted a declaration with the courtroom Jan. 13 and stated he supported the contempt movement.
Vicent Granese, a guide with Transcend Wi-fi LLC, stated that Bay Communications had been approached via metropolis counsel to settle the disputes.
“I’m knowledgeable and imagine that the Metropolis sought two separate opinions from outdoors counsel as to the probability that Bay would prevail with its enchantment in reference to its settlement negotiations,” he stated, in his declaration. “In the end, the events, via counsel, negotiated an Settlement for Judgment that required the Metropolis and the Board to grant all obligatory zoning aid, web site plan assessment approvals, and permits with respect to Bay’s proposed Facility.”
His declaration then stated that: “On or about December 1, 2020, the Board met to contemplate proposed findings with respect to the issuance of the zoning aid and web site plan assessment approval clearly promised to Bay within the Settlement for Judgment and required by the specific phrases of this Courtroom’s November 12 Judgment.
“The Board refused to grant the required aid and continued the matter to a later date.
“On or about January 4, 2021, the Metropolis’s Code Enforcement Workplace acknowledged receipt of Bay’s utility for a constructing allow with respect to the Facility, however indicated that no motion on the constructing allow utility would happen till the Board had granted the required zoning and web site plan approvals.
“The following day, January 5, 2021, the Board once more met to contemplate the issuance of the zoning aid and web site plan assessment approval required of it below this Courtroom’s Judgment. Regardless of the unambiguous language of the Judgment, the Board refused to authorize the required zoning aid and approvals.
“As an alternative, the Board voted to ship a memorandum to the Metropolis Council asking that the Board be allowed to seek the advice of with one other legal professional that may signify the Board and its pursuits.
“As of the date of this Declaration, the Metropolis and the Board has neither granted the zoning aid or web site plan assessment approvals required below this Courtroom’s Judgment nor issued a constructing allow for the development of the Facility.”
Attain Editorial Director Lynda Clancy at email@example.com; 207-706-6657