Interveners seek to resolve Heath cell tower dispute ahead of Oct. 31 court date

  • STAFF FILE PHOTO/PAUL FRANZ STAFF FILE PHOTO/PAUL FRANZ

Staff Writer
Published: 10/6/2022 5:58:01 PM

HEATH — With an Oct. 31 court date looming, the group of “interveners” involved in the town’s litigation with AT&T, which had hoped to build a 180-foot cell tower, are discussing agreements with AT&T and the Selectboard outside of a court setting.

“I appreciate the interveners are trying to settle this outside of court and appreciate the honesty people had at the meeting” with AT&T representatives, Selectboard Chair Robyn Provost-Carlson said during a Selectboard meeting this week.

The situation started in September 2021 when the Planning Board denied AT&T’s application to build a 180-foot cell tower on 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.

During four 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 of the proposed structure violated what was permitted in current town bylaws.

Following the Planning Board’s denial of the application, AT&T brought a lawsuit against the town last 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.” The Selectboard got involved, saying it was the body responsible for legal proceedings, and started renegotiating with AT&T for a 140-foot tower instead of bringing the case to court.

Intervening is defined as entry by a third party, with a personal stake in the outcome, into a civil complaint. The group of abutters to the proposed cell tower on the corner of Rowe Road and Knott Road gained status as interveners by the court in the spring.

The interveners have proposed two different sites that would be preferable for AT&T to build a cell tower. However, AT&T has rejected both sites.

“The meeting was appreciated and useful discussing what we liked and didn’t like about the proposed site,” Kevin Maloney, a member of the group of interveners, said at this week’s Selectboard meeting. He said Ed Perry, the lead project director with AT&T “came to the table willing to both talk and listen.”

Maloney said the two alternative sites the interveners proposed are both on the east side of Route 8A. AT&T’s preferred site is on the west side.

“We understand that the primary goal for the proposed site is cell coverage along (Route) 8A. We feel that the alternate sites supply that coverage and we’re currently having this verified,” Maloney clarified in an email. “One of the sites that we’ve proposed already has a recorded lease by a cell facility tower company. We believe that there are definitely viable alternative sites within Heath.”

Legal proceedings begin Oct. 31, and seven additional court dates have been scheduled through June 2023.

“If we are going to get out of going down the legal road, we are going to have to do it really quick,” Maloney commented. He explained AT&T will likely not settle once the court proceedings have begun so the interveners have just over three weeks to reach an agreement with the company. However, he confirmed the interveners are willing to go to court if the parties do not come to an agreement before the court case begins.

Provost-Carlson explained that when the interveners became involved in the lawsuit, all the negotiating of the settlement was lost, bringing the lawsuit back to square one. The Selectboard had negotiated with AT&T to lower the height of the proposed cell tower from 180 feet to 140 feet, got the company to reimburse the town for legal fees and got it to pay for safety equipment.

The interveners came to the Selectboard in August seeking the board’s help to begin negotiations outside of court. These negotiations have not been fruitful.

“There is a chance that the back and forth won’t work,” Provost-Carlson said, “and the case will continue.”

Bella Levavi can be reached at 413-930-4579 or blevavi@recorder.com.


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