Blue Sky Towers has taken its fight with Waldoboro, Maine, to federal court, arguing that the town’s tower-siting restriction effectively prevents Verizon from addressing a significant wireless coverage gap in South Waldoboro.
Blue Sky Towers IV has taken a Maine zoning dispute to federal court, alleging that Waldoboro effectively blocked Verizon from filling a significant wireless coverage gap when the town refused to allow a proposed 194-foot tower roughly five miles from the only corridor where local rules permit new wireless facilities.
Blue Sky, the nation’s 51st largest tower owner, filed the complaint September 11 in the U.S. District Court for the District of Maine against the Town of Waldoboro, its Board of Appeals and its Planning Board. The tower developer is suing on its own behalf and for the benefit of Cellco Partnership, doing business as Verizon Wireless.
At the center of the dispute is a proposed 194-foot self-support tower at 2734 Friendship Road in South Waldoboro. The structure would also have Verizon’s panel antennas mounted at a 190-foot centerline. Blue Sky says the facility is needed to address deficient Verizon coverage along Route 220, Finntown Road, Back Cove Road and surrounding homes, businesses and roads.
The lawsuit does not simply ask the court to send the application back to town officials for another look. Blue Sky wants the court to invalidate the denial and ultimately clear a path for construction, including ordering the Planning Board to approve the site plan and requiring the town to issue the necessary permits.
A 300-yard rule is at the heart of the fight
Waldoboro’s land-use ordinance allows wireless telecommunications facilities in its Rural Zoning District with Planning Board site-plan approval. But another provision says a wireless telecommunications facility is permitted only within 300 yards of Route 1.
That creates the central problem for Blue Sky: its proposed site is approximately five miles from Route 1.
The developer sought a dimensional variance from the 300-yard restriction. The town’s attorney concluded that the provision is not a setback at all, but a location requirement that functions more like an overlay zone. Because Maine law limits the dimensional standards eligible for that type of variance, the attorney advised that the Board of Appeals did not have jurisdiction to grant Blue Sky’s request.
The Board followed that reasoning and unanimously denied the variance on August 20.
Blue Sky now argues that the result puts local zoning law on a collision course with federal telecommunications law.
Blue Sky says Verizon has nowhere else to go
According to the complaint, Verizon submitted RF evidence showing a significant coverage gap in southern Waldoboro caused in part by the distance between existing sites, intervening terrain and traffic demands.
Blue Sky says propagation maps show deficient 700 MHz and 2100 MHz LTE coverage and contends there are no existing towers in the relevant search area that can solve the problem. It also alleges that surrounding parcels are unsuitable because of setbacks, parcel size, lack of vegetative buffering or lower elevations that could require a tower taller than the proposed 194-foot structure.
More importantly for the federal case, Blue Sky says putting a tower where Waldoboro allows one would not solve Verizon’s problem.
The permitted Route 1 corridor is about five miles from the coverage gap, according to the complaint, and a facility there would serve a different geographic area. Blue Sky therefore contends that enforcing the 300-yard restriction effectively leaves Verizon without a viable location for a tower that can close the gap.
That distinction will likely be central to the case. Blue Sky isn’t merely arguing that its preferred site was rejected; it alleges that Waldoboro’s ordinance makes a workable alternative effectively impossible.
The approval process became contentious
The complaint also paints a picture of an unusually contentious municipal review.
Blue Sky alleges that during a July 9 Planning Board hearing, the board chairman left his seat at the board table, went to the lectern and delivered a 40-page presentation opposing the tower while purporting to speak as an individual. He then returned to the Planning Board table.
According to Blue Sky, when asked whether the town’s newly amended ordinance had removed the 300-yard restriction, the chairman said it had been specifically retained because of Blue Sky’s application.
Blue Sky subsequently asked that the chairman recuse himself, alleging bias and a conflict of interest. He did recuse himself at the August 13 Planning Board hearing, according to the complaint.
The developer also alleges that the review was plagued by postponements and procedural complications. Its April hearing was postponed while the town attorney considered whether Blue Sky needed a waiver or variance; a June hearing was rescheduled because of a notice problem; and a scheduled July 9 Board of Appeals hearing never opened after the board chairman left the meeting room.
Town attorney said the federal question belonged in court
There is an unusual wrinkle in the litigation: before Blue Sky filed its lawsuit, Waldoboro’s attorney essentially concluded that the federal issue Blue Sky was raising was a matter for a court.
In a July 9 memorandum included as an exhibit to the federal complaint, town attorney Amy K. Tchao recommended that the Board of Appeals not decide whether the 300-yard restriction effectively prohibited wireless service under the Telecommunications Act.
Citing an earlier District of Maine tower case, Vertex Towers LLC v. Town of York, Tchao wrote that whether denial of a variance amounts to an effective prohibition is separate from whether a local zoning decision is supported under state and local law. She recommended that the board concentrate on Maine law and the town ordinance, saying the effective-prohibition issue was a federal-law question to be decided by the courts.
Blue Sky is now asking a federal judge to answer precisely that question.
Federal law becomes Blue Sky’s hammer
The complaint asserts that Waldoboro’s decision violates provisions of the Telecommunications Act that prevent state and local governments from prohibiting, or having the effect of prohibiting, personal wireless services.
Blue Sky also alleges that the denial was not supported by substantial evidence and raises a state-law claim accusing the Board of Appeals of abusing its discretion and committing an error of law by failing to consider the effective-prohibition issue.
The developer is seeking expedited review, something expressly contemplated by Section 332(c)(7)(B)(v) of the Telecommunications Act for challenges to local wireless siting decisions.
If Blue Sky prevails, it wants more than a declaration that Waldoboro got it wrong. It is asking the court to declare the 300-yard restriction invalid as applied to the project, determine that the tower is permitted at the Friendship Road property, order the Planning Board to issue site-plan approval within 30 days after Blue Sky resumes the application, and require the town to issue the remaining local permits and approvals. The company is also seeking costs and attorneys’ fees.
