From the Eagle Tribune;
Tower company sues Atkinson over cell phone antennas
By Jarret Bencks
jbencks@eagletribune.com
ATKINSON — A company seeking to install three cell phone antennas on a tower is suing the town for stalling the proposal and then denying the project all together.
The lawsuit, filed by SBA Towers II in U.S. District Court, alleges selectmen created rules as they went along during their review of the plans, attempted to impose an illegal fee during the permitting process, and are preventing phone service from being provided to local customers.
It is the second time the tower installation company has taken a town board to court in its attempt to install three wireless phone antennas on the 160-foot tower near High Hill Road. The tower would provide service to T-Mobile customers.
In 2007, the town's Zoning Board of Adjustment rejected the proposed antennas. That decision was appealed to U.S District Court in Concord on the grounds it violated the Telecommunications Act of 1996, which was designed to lighten regulations for telecommunications providers.
Judge James Muirhead overturned the board's decision in September 2008, but required SBA Towers to seek approval for the project from selectmen.
For more than a year after that decision, a back-and-forth ensued between the town and SBA. Numerous public hearings were canceled and then rescheduled. Selectmen raised new questions about the tower, and demanded additional requirements for the project, according to court documents.
At one point, the town building inspector told SBA officials that selectmen demanded a $2,500 fee for the engineering analysis, the lawsuit alleges. It is illegal to impose fees of that kind in connection with a building permit application.
Selectmen voted unanimously to deny the application Nov. 23, citing the impact the project would have on abutting properties.
The lawsuit in U.S. District Court, filed Dec. 23 by SBA attorney Steven Grill, accuses selectmen of taking too long to review the project and making up rules as they went along.
"The selectmen challenged or ignored the evidence submitted by SBA and invented a variety of ad hoc submission requirements and procedures, imposing one obstacle after another to what should have been an easy and straightforward application," the lawsuit states.
The suit also claims selectmen's actions are prohibiting wireless service to be provided in Atkinson and accuses the board of violating the state's constitution.
"The Selectmen violated the constitution and laws of New Hampshire by acting in an arbitrary and unreasonable manner throughout the course of this matter."
SBA Towers asks the court to overturn the selectmen's decision and seeks unspecified monetary damages. The lawsuit requests a trial by jury.
Selectman Bill Friel said his board had not been informed of the lawsuit as of yesterday. Friel said he wouldn't comment on the matter until he had a chance to read the lawsuit. Town attorney Sumner Kalman also said he had not yet seen the suit.
Atkinson Town Hall
The Norman Rockwellian picture of Atkinson
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23 comments:
I watched the first hearing. SBA and T-Mobile came in totally unprepared. Their lawyer did all the talking and he could not answer even the simplest questions.
I think they came thinking the approval process would be a no-brainer and did not count on a BOS with a few brains.
The tower is over 50 years old. The BOS and the town inspector had every right to request a study to make sure it could withstand the new stresses. $2500 is a drop in the bucket for these people and they refused even that simple request.
Quite simply, SBA and T-Mobile blew it. They did not do their homework and handled the hearings poorly. The BOS would have been remiss to approve such shoddy work.
And for those who will claim the BOS has denied them cell service, keep in mind the T-Mobile is only one of 5 major cell carriers. Unless you are a T-Mobile customer, this site would not have improved your coverage one iota.
More lawsuits means more work for town counsel! Funny how that works out. Methinks his incentive plan is a bit backwards.
Does anyone see a pattern here?
LOL!
The town was in a no-win situation. If it approved the plan, the neighbors would have sued. They disapproved the plan, SBA sued.
What would you have the BOS do in this situation?
The BOS made the right decision on this issue. If the people don't want it and a safety issue could come out of a different decision, then public safety should rule.
SAB shouldn't be allowed to bully the BOS into doing something they don't agree with. Is Maggie Osborn on the Board of Directors of SBA and T-MOBILE? Sounds like something she would do.
In case you want to know, the Osborns are STILL living illegally in their 8 Valcat house. When will they be kicked out Mr.Selectmen......................
WHEN WILL THEY BE KICKED OUT?
I've got a great idea!
Why don't you make a new year's resolution to move out of town and quit you're whining and bitching.
The town will lose the court fight once the truth comes out. Stop bitching now and let it all play out. Got it?
jmo
i live next to valcat and i think the davis's and the osbournes are really nice people. we should try and get along. peace for the new year.
Mr. A____s
The Osborns are anything but nice people, and they have been ORDERED out of their house. Not bitching, just want them to follow the laws. If they can't do that, then they need to move out of town. It's that simple. MAGS needs to pack her BAGS.
I have to say I think that in this instance the BOS made the right decision for the right reasons. This has been under litigation since 1984. There have always been safety issues up there for 20 years. There is no adequate fall zone. there are weight issues.
They did the right thing. Thank you Mr. Friel and Mr. Bennett.
I guess we should change the spelling of the town's name....
Atkinsuen
Like you said about no win, either way we were going to see another lawsuit, just different plaintiffs.
Do we have any resident lawyers who will work pro bono?
As a commercial project, the tower is subject to site plan review by the planning board. The $2500 is an escrow deposit to ensure that the consulting town engineering firm gets paid to review SBA's design. Legal under state law and I doubt that any federal or state judge would waive that.
Besides SBAII doesn't exactly have a history of acting in good faith on this issue.
I support the BOS on this one.
Since when is the BOS supposed to fold just because someone's going to sue? That's stupid logic, let them sue, in this case the money isn't wasted because the town's interests are being protected. Grow up...
I support the BOS on this issue too, and I support them on the Osborn situation. Someone else asked when the Selectmen are going to enforce their order to move out and I would like an answer to that too.
Does anyone know how long it will take them to make that decision?
Think about how much pain and expense could have been avoided over the last five years if we had a BOS that tried to do the right thing.
December 30, 2009 9:59 PM
Makes no difference. That is the past is nothing is going to change it.
The BOS may not be doing everything you want, but at least they are doing things. I had my doubts about Bill Friel but he has shown himself has more than capable.
And as for Bill Bennett, I know that he has worked his ass off to do a good job. For a retired person who gets only $3000 a year to deal with this whole mess, I think he as done a remarkable job. To see him put Sapia in his place is worth every penny.
But, you cannot change everything overnight, or over a year. Certain people are entrenched in this town. Certain ways are entrenched. With things like that, it will take time to correct. I say we give them a chance.
With SBA, they did the right thing. With the Osborn's, they did the right thing. I'm sure the decisions were not easy, but they made them.
Sometimes good things take time to unfold. Let it run its course for awhile.
Quite frankly, my biggest concern is that Jack is thinking of running again. He can't seem to keep his fingers out of things. He always seems to have the need to rush down to town hall during a BOS meeting, disrupt the proceedings, and insert his 2 cents. He's like a junky. He needs his fix, but at our expense.
I think we have a BOS that is finally working. Let's pray it does not regress to the old ways.
To 12/30/09 12:16 PM
You say you live next to Valcat, then you know that half the homes there are boarded up for the winter months, with no one around and the rest of the neighbors are supporting Carol Davis in her lawsuit against the Osborns.
There isn't anyone within a mile of Valcat Lane that thinks the Osborns are nice people.
I can't believe the Osborns are still living in that house. Perhaps it's time to have a petition drive of all Hemlock Heights and present it to the Selectmen again. They just can't overlook breaking the law in order to protect one of their own.
The Osborns are criminals.
They stole land from Hemlock Heights and then from Carole Davis.
They accuse everyone and anyone of harassing them, of criminal threatening and assault. They get away with it while using the police department to do their dirty work.
They use our cable TV to accuse the selectmen and other boards of harassing them.
They abuse our volunteer town boards, state boards and the courts to get what they want. They do all this while lying through their teeth.
In this New Year, the authorities need to began making them account for the harm that they do to so many.
They need to be prosecuted.
NEWSFLASH:
The Elderly Affairs/police department has officially MORPHED into the Atkinson Managed ANYAGE (Care) Group. A-MAG.
So illegals of all stripes and any age can get in-home services. Illegals on Valcat too.
A-Mag
Rah, rah, rah. At-Kin-Son
Ad Hominem personal attacks will not be tolerated.
The first step to take to resolve all town issues is to have a town moderator who does not play fast and loose with the rules and RSA laws at deliberative session.
Polito considers himself a LAWMAKER and this has to change. Instead of moderating he conspires to encourage hacks at deliberative session to turn valid citizen articles into meaningless garbage.
You think your trucking article is not going down to the same fate as all the other Citizen Petition Warrant Articles signed by hundreds of others? If you are not at deliberative session January 30th then you can watch your article go down in flames on TV. That's if the chief or another town official has not called your supporters and asked them "Why did you sign this SHIT" an hour after it is submitted.
You want to take back control of town government and see real transparency and punishment for theft of town services?
Then you must come to town deliberative session, January 30th and vote to strike evil at its core.
Vote for Frank Polito to step down as moderator for violating the Public Trust, legal RSA Rules and his own Moderator Rules. If the moderator says he can’t be removed and you are HELPLESS…then you need to decide if the town belongs to you, the honest citizens, or to THEM. If it belongs to the honest citizens and all of you SHOW UP then he will be the one who is HELPLESS.
A new moderator must give individuals ample time to explain ALL SIDES OF THE ISSURES with no heckling like Polito allows. Not to mention… follow the laws of public meetings.
To remove bullies and to protect your state laws and Constitional rights you must strike evil at its heart.
Come to deliberative session and vote for the moderator to step down. Then you can:
1. Freely discuss and vote on the theft of town services
2. Misappropriation of Homeland security grant equipment (we are now asked to buy a second time
3. Failure to supply legally required police reports
4. Failure of the ZBA board chairman Polito so that "loopholes" allowed the theft of Carol Davis land
5. The Lack of true separation of elderly affairs from the police dept sufficient to result in police staff in fact and by admission…working on the town clock illegally (“double-dipping”)
As to the last issue the selectmen know about the “Double-Dipping”, and asked IN SECRET for a check back for the money...then hid the facts from all voters so voters can issue reprimand at deliberative session January 30th
No more needs to be said. You know your responsibility. You will come to deliberative session January 305h…and hold them to account. You will vote to prevent rampant spending such that your property taxes double….or will you opt to spend your day shopping at Kittery only to find out later you can't AFFORD the luxury of living in your own home!!!
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