Cemetery cell tower dead lacking ZBA permission
Published on July 2nd, 2008
STONEHAM, MA - T-Mobile dropped its request to erect a cell-tower at St. Patrick's Cemetery last Tuesday after being berated by Zoning Board of Appeals (ZBA) members for failing to prove that it has obtained permission to erect the facility.
Last Tuesday, attorney Brian Grossman, representing T-Mobile subsidiary Omnipoint Communications, finally relented to repeated calls by ZBA members to withdraw the petition.
"After consulting with Town Counsel [Bill Solomon], Omnipoint wishes to change positions and request a withdrawal without prejudice," announced Lobel Glovsky & Tye lawyer Brian Grossman, after a brief recess during the public hearing.
The ZBA unanimously accepted the applicant's request to withdraw, much to the delight of area residents protesting the installation of the wireless facility.
Although the development was a victory for the town, which fought the proposal because it violates Stoneham's zoning bylaws, T-Mobile can refile for the cell-tower at anytime.
Last March, Omnipoint filed an application with the town seeking to construct an 80-foot tall cell-tower, disguised as a flagpole, at St. Patrick's Cemetery.
Radio frequency engineers for T-Mobile had argued that the cemetery spot, located about 48-feet from Broadway, was the only location that would fill a large dead zone in coverage that extended throughout the center of Stoneham and into neighboring Wakefield.
Based upon the federal 1996 Telecommunications Act, municipalities are prohibited from blocking telecommunication companies' attempts to fill such large gaps in coverage - even if wireless facilities violate local zoning bylaws - unless a reasonable alternative exists.
At the outset of last Tuesday's hearing, ZBA Chairman Jim Juliano chastised representatives from the telecommunications' company for failing to provide proof that it has a lease with the Archdiocese of Boston granting permission to use a portion of the cemetery property.
"It has come to light that there's no written documentation of the applicant's right to use such property. Do you have any documentation that you have a contract with the Archdiocese?" the ZBA Chair questioned.
Just two weeks ago, Terry Donilon, spokesman for the Archdiocese, insisted in an interview with The Stoneham Independent that the deal with Omnipoint permitted the company to construct the 80-foot tall tower on a vacant parcel of property located across the street from the cemetery.
Throughout the ZBA hearings, Grossman and his counterpart Jennifer Lewis insisted that the wireless installation was slated for a parcel of land within the cemetery, located nearby the parking area across from Broadway Field.
"Omnipoint has a fully executed lease with the Archdiocese. We're making sure that we are satisfied that the lease provides for the location that we are [talking about]," Grossman admitted.
Pointing out yet another missing piece of information, Zoning Board member Gerard Cunningham, following-up on a request from last month, challenged why the town hadn't been provided with a simple rendering of the proposed cell-tower.
When Grossman indicated that he still hadn't obtained that information, Cunningham offered to let T-Mobile withdraw the petition and come back when the applicants could provide the basic information being sought.
"So you've come here again and I still don't even know what I'm looking at. So how long is it going to be before I even see a picture of it? Just a picture. You don't have that tonight?" asked Cunningham.
"I do not," the attorney responded.
"Well, why am I here," vented the ZBA member. "You do know you have a right to withdraw? You may do that now if you please."
The lawyer later claimed that he had been forced to come to the hearing after Town Counsel Bill Solomon refused to grant the applicants a continuance to a later date.
According to Grossman, he had indicated a desire to continue the hearing to a future date, so that he could gather all the information being requested by the town.
However, Solomon later claimed that offer had only been extended the day before the hearing, and that during that discussion, it had never been admitted that there was a question as to where the tower would be placed.
The town lawyer also referred to a hearing in June, when similar information was missing and requested.
At that time, Solomon had urged the Lobel Glovsky and Tye representative to grant the town more time to review the proposal, but Grossman refused. By law, the ZBA would have been forced to issue a decision on the project during the beginning of July.
According to the town counsel, he had spoken with Grossman on the Friday prior to Tuesday's hearing, and threatened to file suit against T-Mobile for its refusal to foot the bill for several technical consultants requested by the town.
Mass. General Law enables local boards to hire consultants at a petitioner's expense when town or city officials lack the expertise to review development data submitted during a hearing.
"It is a unique situation that an applicant would be before this board, particularly on a technical matter, taking up a lot of the town's time, effort, and money, when they're not even sure that they have permission to place an 8.5 story tower on cemetery property," said Solomon.
"As you know, at the last hearing, this board and myself asked T-Mobile numerous times to extend the 100-day deadline...But despite requests to extend that deadline, T-Mobile's response was, 'Well, we'll see.'"
"I've never seen a position where an applicant has tried to run the clock out and put the town in a disadvantageous position. And that's what happened here," the Town Counsel alleged.
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