Court says town must OK cell tower

Posted Aug. 06, 2009, at 7:36 p.m.
Last modified Jan. 30, 2011, at 12:14 p.m.

LINCOLNVILLE, Maine — The Maine Supreme Judicial Court has ruled that the town must allow a telecommunications tower to be built at the foot of Bald Rock Mountain.

In reaching its unanimous decision supporting Florida-based SBA Towers’ right to erect a 190-foot-tall tower at the base of the mountain, the Law Court found that the planning board misread the town’s own ordinances when it repeatedly denied the company’s application.

“No ordinance may prohibit or effectively prohibit telecommunications towers altogether,” Justice Warren M. Silver noted in his decision, which was handed down Thursday.

By ruling in favor of SBA, the court also overturned a decision by Waldo County Superior Court Justice Jeffrey Hjelm that upheld the planning board’s right to reject the project.

The Law Court’s decision sends SBA’s application back to the planning board for approval. Procedurally, the case goes back to Superior Court, then to the town’s Zoning Board of Appeals, before reaching the planning board.

SBA first applied in 2005 to build a cell tower in town. The company proposed a tower capable of handling calls from up to four wireless carriers to be located in a wooded area between Bald Rock Mountain and Penobscot Bay.

Over the next few years, the planning board twice rejected the application based on a determination the tower would block views from the mountain, despite being ordered to approve it by the board of appeals. The planning board approved the application when it was presented a third time. Opponents to the project appealed that decision to the Superior Court; then appealed to the supreme court Justice Hjelm’s ruling that the planning board had the authority to make a determination on the application.

SBA argued that the decision was “unconstitutional on its face” because it gave the planning board “unfettered discretion” to deny the application. The town’s ordinance permits cell towers up to 195 feet tall, and the Law Court found that if it denied SBA’s application, the board would be overlooking its own ordinance.

Bald Rock Mountain, which is within Camden Hills State Park, has a popular hiking trail to its summit. The mountain is about a mile from the coast. From the summit, the view across Penobscot Bay and its islands is stunning. Opponents of the tower argued that allowing the tower to be built would affect those views.

Because the tower would be taller than the trees below, members of the planning board initially agreed, relying on a portion of the town ordinance that allows it to deny construction of cell towers if they “unduly obstruct or have an unreasonable adverse impact on” scenic views. However, after its denial of the permit was overturned a third time by the board of appeals, the planning board approved the application.

Lincolnville resident Lorraine Davis was among those who appealed the board’s decision, as well as the ruling by Justice Hjelm, to the Law Court.

Attempts to reach Davis’ Portland-based attorney, Chris Vaniotis, and SBA attorney Christopher B. Mulligan of Portsmouth, N.H., for comment were unsuccessful Thursday.

The state supreme court justices found that the town could not reject the application “merely because it [the tower] is visible within the tree canopy.” They noted that the “only way” to preserve the view from Bald Rock Mountain would be to make the tower shorter, “which conflicts with the ordinance.”

SBA proposed locating the tower within a 5,623-square-foot fenced compound surrounded by undeveloped woodland. The court noted the company intentionally selected an area with heavy tree cover, planned to clear as few trees as possible, and would leave a large wooded area to serve as a buffer. The road to the tower would be screened as well.

The court found that the planning board modified the ordinance’s definitions of “the tree line” and “vegetative screening” when it denied the application. It found that SBA had met the “burden of establishing the factual elements necessary to obtain a permit.”

The court further concluded that evidence the company brought before the planning board “compelled a positive finding” and instructed the board to grant the application.

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