HEATH — Town officials and residents are awaiting a judge’s decision that could settle ongoing litigation with AT&T to build a 140-foot cellular communications tower at 0 Rowe Road. The judge will also decide whether to allow a group of neighbors to join the lawsuit as “interveners.”
Intervening is defined as entry by a third party with a personal stake in the outcome into an existing civil complaint. The intervener would join the suit by filing a motion to intervene.
The situation started in September when the Planning Board denied AT&T’s application to build a 180-foot tower on the site, a 100-acre parcel on Knott Road with frontage on Rowe Road. The land is owned by John Metallica, who lives in Greenfield. AT&T would lease the property.
Already aware of a previous issue in Ashfield regarding a proposed AT&T cell tower, Heath planners hired veteran telecom lawyer Andrew Campanelli as a consultant.
During four public hearings, the Planning Board heard many comments from neighbors about property values and the impact a cell tower would have on the town’s rural character, citing an adverse aesthetic impact, being out of character with the neighborhood and reduction in property values. The board also found the height violated what was permitted in current town bylaws and that AT&T failed to provide sufficient data about why it chose the desired site or prove any significant gap in service that the proposed tower would rectify.
“AT&T did not prove to us that this tower would make a substantial difference in coverage or that it would not need more towers in the future to complete the coverage,” the Planning Board wrote in its decision.
Additionally, planners said AT&T failed to make any effort to identify or evaluate alternative sites or alternatives to co-location, or renting space on the tower. To do so, each co-locator must be 10 feet apart, thus pushing a tower higher to accommodate more co-locators.
“It is impossible for us to say they have met their burden of proof establishing least intrusive means because they haven’t given us the evidence to prove that,” the board wrote. “We asked them, we did not demand it, and they simply refused to provide it.”
Following the Planning Board’s denial of the application, AT&T brought a lawsuit against the town in October, saying the town had violated Section 704 of the Telecommunications Act of 1996 that reads: “No state or local government or instrumentality thereof may regulate the placement, construction and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the commission’s regulations concerning such emissions.”
That’s when the Selectboard got involved, saying it was the body responsible for legal proceedings, and started renegotiating with AT&T for a potential 140-foot tower.
While the issue has largely been handled in closed-door sessions to date while the town awaits the legal ruling, many resident spoke up at a meeting earlier this month during the Selectboard’s public comment period.
Planning Board Chair Doug Mason noted the board spent “hundreds of hours working on this and this tower did not do what Heath needs it to do.”
“We weighed all the options and made a decision based on the quality of the application and there were a lot of holes, a lot of things they didn’t do,” Mason said. “It doesn’t mean we can’t have a cell tower in Heath, it means not this one. There are better ways to do this. We turned it down because it was a bad way to do the cell tower.”
Neighbor Kate Peppard, part of the interveners petition, spoke about the fact that the Planning Board was left out of the Selectboard’s negotiation with AT&T.
“In this community and style of government you do not have to operate in a vacuum; you do not have to go it alone,” she said, noting as a citizen she expected that the time, effort and expertise of town boards would be respected. She “implored” the Selectboard to keep the Planning Board in “your process” and “to keep public trust in town government alive.”
Tara Mason, also part of the interveners petition, said that “no one is against public safety in Heath.”
She said she and others decided to become involved because the AT&T application was not complete.
“There are some questions and I don’t think it’s unreasonable for them to be answered,” she explained, adding the issues are “emotionally charged for a lot of us.”
“We believe it isn’t a good site for this cell tower and the Planning Board denied the application based on its merits and bylaws,” she said. “It goes back to the site; it’s not a good site and it’s likely not going to do what they say it will do in terms of coverage.”
Tara Mason did not shrink from addressing what may be the perception by some that the interveners’ objection results from NIMBYism, a “not in my backyard” objection.
“I certainly understand that viewpoint and what I can say is if the Planning Board of the town thought it was a good site after all their work on this, I would be less opposed,” she said. “But they did their job and looked at the site and application and decided it didn’t fit. I think that’s what we should go on.
“We don’t want the tower in our face, obviously,” she continued. “I think what people don’t understand is that this thing would be looming over all our homes. This is our one chance to possibly have some say in this and we’re going to take it because if this tower goes up, it’s not coming down. It’s unfortunate that it’s gotten to this point, but we’re hoping for the best for everybody, for the town, in terms of a longer view of this. We’re reasonable people and realize there are lots of moving parts and this is a complex issue.”
At the Feb. 1 meeting, Town Coordinator Hilma Sumner noted the town has been charged $9,980 in legal fees for November and December, and doesn’t have the money to pay December’s $5,000 invoice. She anticipates the January invoice will be at least that much.
“We’re going to need thousands of more dollars before July 1,” Sumner said, adding that a Special Town Meeting to allocate money can be called, the town can overspend or folks can “hope the money tree has a heavier than usual crop.”