....................480 Adams Street, Suite #208, Milton Massachusetts, USA • 617.696.7758
 
 
 
 

Cell Tower
at Center
of Dispute

By Scott MacKeen
Staff Writer
7/1/10
A hearing was held last week to discuss the continued operation of a cell tower at the Milton American Legion property on Granite Avenue.

Legion members say they want the telecommunications tower off their property, or at least set back out of sight from where it currently stands.

The 110-foot tower stands in the parking lot of the Legion property at 123 Granite Ave., inside a fenced, 3,600-square-foot compound.

Legion members claim the company that owns and operates the tower has not kept its word in maintaining the structure under a lease agreement. They say the company – Florida-based SBA Towers II LLC – has ignored concerns and was late filing a renewal permit to keep the facility on the Granite Avenue site.

“We’re dealing here with a bad tenant. They’re not people we want to deal with. That’s why we oppose this,” said Legion member Al Thomas at a Board of Appeals permit application hearing June 22. “They’re down in Florida. They could care less about what happens here in Milton.”

However, an attorney for SBA said if the tower were to be removed, it would create a “significant” gap in cell-phone service to customers in a highly traveled spot. He said no one complains about the tower, which services Verizon, T-Mobile, Sprint and Metro PCS customers in the northeast of town near Presidents Golf Course.

“To my knowledge, there have been no complaints until the situation came up to renew the permit,” said attorney Robert Sheffield.

The tower is currently operating without a special permit. Although the Board of Appeals voted in April to grant a renewal, the decision is being appealed in Land Court. A court conference June 23 was continued and a new date has not been set.

Meanwhile, a new application has been filed.

The cell tower was constructed in 2003 under terms of a special permit and a lease with the Milton American Legion.

The permit expired in December 2008 and a renewal application was not filed until last December, according to both parties.

When the Legion realized the renewal was past due, it sent out a notice of noncompliance, said Robert O’Leary, the Legion’s attorney.

He said Legion members are trying to protect their property and have a number of issues with the tenant.

Management of the tower has changed hands several times, most recently in November 2008, when SBA acquired it from National Grid, according to Sheffield.

Dan Goulet, a radio frequency engineer with New Hampshire-based C Squared Systems, testified to the need for the tower. He said the technology doesn’t work with a smaller tower and the Legion property is the only feasible location. Owners of the golf course and a nearby office building do not allow telecommunications facilities on their property.

“The carriers have to have something here. There are no significant structures that could fill the gap if [the Legion cell tower] were decommissioned,” said Goulet, adding that there are federal standards that guide companies in maintaining adequate coverage.

O’Leary did not dispute the coverage-gap issue, but said the Legion has “a responsibility to keep its property in compliance with all laws.”

“If they don’t have a special permit, they’re operating in violation of the law,” he said.

In addition, O’Leary said the Legion has many issues with how the telecommunications facility has been operated over the years. For example, he said, the lease calls for the company maintaining the structure to plant tall trees around the tower to conceal it from view.

Sheffield passed around photographs of smaller trees that have been planted within the past year, but said they have been destroyed by snow plowing.

He then proposed installing 10-foot-high vinyl paneling around the tower, but Legion members objected.

Thomas said there is the possibility that the structure could be moved farther back on the property, where it would be largely out of view.

He said that option was supported by former town engineer Larry DeCell but won’t be considered by SBA.

“They wouldn’t even listen to this. They said it was too expensive,” he said.

Sheffield said there are property setback requirements that make moving the structure unfeasible.

On several occasions during the hearing, O’Leary was rebuffed by the Board of Appeals when attempting to rehash their earlier decision to grant a renewal permit. O’Leary argued that and that a new board should consider the latest request for a new special permit.

Board Chair Emanuel Alves said several times the case is under appeal and he would let the courts decide.

“We’re not going to re-litigate this case,” he said, adding that he takes offense to the notion that the board was biased.

O’Leary accused the board of violating the Open Meeting Law during the initial application renewal process.

His point was the bylaw calls for an application to be made before expiration.

Alves had a different interpretation, saying that the bylaw gives the board the right to grant a renewal of an expired permit if its finds the application does not damage the public good.

Board member Sara Harnish denied the claims of an Open Meeting Law violation, calling them “outrageous.”

“That’s a very serious accusation. You need to come up with more than [your words]. You’ve only talked at us. That’s not evidence,” she said.

Following much back and forth on the issue, the Board of Appeals voted to continue the hearing to July 20.

Alves said he intends to decide on the matter at that time.