Westport Select board defends cell phone tower settlement

Settling was town's only realistic option, board members say

By Ted Hayes
Posted 9/21/22

Members of the Westport Select Board last Monday defended their decision to settle a lawsuit brought by a cell phone tower contractor, saying they did the best they could for the town in the face of …

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Westport Select board defends cell phone tower settlement

Settling was town's only realistic option, board members say

Posted

Members of the Westport Select Board last Monday defended their decision to settle a lawsuit brought by a cell phone tower contractor, saying they did the best they could for the town in the face of federal regulations they believe limited their chances of being successful in court.

The suits, one in state court and another in federal, were brought last summer by Municipal Communications II LLC, after the zoning board of review denied the Georgia firm the variances and other approvals it needed to build a 150-foot tower at Drift and Masquesatch roads.

In a Thursday, August 4, decision, Judge Angel Kelley vacated the zoning board's August 30, 2021 decision to deny Municipal Communications the right to build at 67 Masquesatch Road. She also granted the firm a special permit with all needed variances and site plan approvals and ordered Westport to issue a building permit no later than 30 days after a permit application is filed with the town.

In addition, the judge stipulated in the settlement agreement that the firm must abide by 27 conditions suggested by the zoning board before the decision was denied.

The judge's ruling, which was agreed to by the town, "fully resolves all of Municipal's pending claims against the town," including an action against the zoning board filed in Bristol County Superior Court last year.

Municipal's companion suits against the town came soon after the town voted 4-1 last August to reject the cell tower, citing the large number of variances that would have been required (five), its height, and other issues. The plan was wildly unpopular across lower Westport.

Last Monday, select board members said that while they would have liked to prevail in court, they believe they did the best they could in the face of a legal challenge that could have proved extremely costly, with little guarantee of success.

"I don't want people to think this is a complete loss," board member Brian Valcourt said. "We actually got the conditions that were suggested by the zoning board to begin with, in order to approve" the firm's application.

Town officials said they knew early on that defending their case could prove problematic, as federal law often favors communications carriers over municipalities. They were also told that legal fees could easily run to stratospheric levels — in the face of the cellular telephone industry's significant resources, Westport's financial position would be no match, they feared.

"From the very beginning ... we were kind of advised that this is very difficult to defend," town administrator James Hartnett said. "The likelihood of success was not very good, and costly."

As board members met regularly in executive (private) session to discuss the court case over the past year, Valcourt said  members and attorneys tried to find a way forward but ultimately realized that they were playing against the system — "Are we going to further pursue this losing battle?" he asked. "Or are we going to try to get something reasonable?"

"At some point, you have to make a decision," he said. "I fell that the board's consensus was that this is the best we can get ... without playing Russian Rouelette."

The board's decision to discuss the case only in executive session did not sit well with some audience members, and one select board member said the town needs to be careful when it chooses that option in the future.

"I'm not happy with the outcome," said board member Richard Brewer. "What I think all boards should do ... is make sure if we go into executive session for the purposes of litigation, we are clear as to the reasons why. It's not intended to be a secret process, though it appears that way."

Several audience members said they felt let down by the board's decision to go behind closed doors, and added that it would have been a good move to be more open about and throughout the process.

"It might have been desirable for the select board to have had an open hearing on the matter, or maybe a joint zoning board/select board hearing before you went into executive session, so that you could have heard the voices of the people," said David Cole, a member of the planning board.

As for the conditions required by the judge, he said, "I haven't seen any conditions that really impose any restrictions on what the developers are going to do that have any significance. We're going to get the tower. It's going to be 150 feet. It's going to be in a terrible location."

And even though the case is resolved, one audience member said continued vigilance is crucial.

"Who is going to be making sure that they abide by these 27 concessions?," one said. "I hope it doesn't slip through the cracks now that the hoopla is over. I hope somebody is paying attention."

"Hold their feet to the fire."

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