Dead end? Federal judge recommends dismissal of York cell tower lawsuit; Vertex objects

YORK, Maine — A federal magistrate judge has recommended tossing Vertex Towers’ lawsuit against the town’s Board of Appeals, which rejected the company’s request for a variance to build a new cell tower in York Village.

Vertex filed its lawsuit in November 2022 after the proposal was rejected by both the Board of Appeals and the Planning Board. Attorneys for the company claimed the Telecommunications Act of 1996 protected their right to build a tower behind the First Parish Church, where cellular facilities are prohibited by town ordinance.

Judge Karen Frink Wolf disagreed with Vertex, however, in her July 31 report and recommended the suit be dismissed. She wrote that Vertex’s claim was “insufficient” in proving the town’s decision to reject the proposal amounted to an unlawful “effective prohibition of wireless services.”

Town Attorney Dan Murphy argued in previous filings that the project’s rejection could not be considered a prohibition on wireless services because Vertex technically does not provide that service. The company builds towers on which carriers like Verizon and AT&T can lease space.

“The town has the better argument,” Wolf wrote. “Vertex has failed to state a plausible claim that the Board’s denial of its variance request effectively prohibits the provision of wireless services.”

Magistrate judges often handle pretrial matters in civil and criminal cases. They are designated to conduct hearings, review the record and submit findings of fact and recommendations. Their reports and recommended decisions, as filed by Wolf, are intended to outline the issues in dispute and recommend an appropriate resolution to the district judge, according to the United States Court website.

Attorneys for Vertex filed an objection to the magistrate’s recommended decision on Aug. 28. They disagreed that Vertex could not claim effective prohibition and argued Wolf’s recommendation “misconstrues” Vertex’s request as an “order” directing the town boards to “issue all permits” to build the tower.

“When in fact the complaint seeks only the opportunity to proceed with site plan review before the York Planning Board,” the suit states.

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Vertex hoping to build tower despite York ordinance

Vertex is seeking to build a 120-foot monopole behind the First Parish Church. Cell towers have been prohibited in most parts of town since 2002. While voters established overlay districts where cell towers could be allowed, they did not include the village.

When Vertex went before the Board of Appeals last year, board members said the mere fact the ordinance prohibited the tower in York Village meant they could not grant a use variance. They determined the project also did not meet the criteria laid out in state law, noting the proposed tower would alter the character of the locality.

Vertex appeared before the Planning Board shortly after and was told their application would not be accepted. In the following weeks, Vertex filed their lawsuit with Vertex representative Francis Parisi saying a federal judge would rule in their favor.

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While the magistrate judge found Vertex can’t claim they face an effective prohibition against wireless service, Vertex claims the Federal Communications Commission itself has said third-party infrastructure providers can. They pointed in their most recent filing to a footnote in the FCC’s effective prohibition discussion from 2018 that said non-carriers involved in wireless deployment can challenge government actions that violate the Telecommunications Act.

“This court should not adopt the recommendation’s interpretation of the TCA to require a carrier commitment,” Vertex attorneys Walter Judge and William Dodge wrote in the response.

The application has drawn concern from some residents who believe the tower will impact property values and lead to adverse health effects. The project has the support of the York Village Fire Department, however, whose chief said improving cell service is a significant need for first responders.

This article originally appeared on Portsmouth Herald: York cell tower lawsuit: Judge recommends dismissal, Vertex objects