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Cell company asks federal court to find Rockland in contempt

City faces fines of $1,000 per day
By Stephen Betts | Jan 14, 2021
Photo by: Stephen Betts This is where a cell tower on 182 Camden St. in Rockland is proposed to be erected.

Rockland — The company that wants to erect a cell tower on Camden Street has asked a federal court to find Rockland in contempt of court for failing to follow through on a negotiated settlement reached last year.

Bay Communications III LLC filed its motion for contempt Jan. 13.

Bay Communications is asking the court to fine the city $1,000 for every day it fails to grant approval for the cell tower. In addition, if approval is not granted by Feb. 4, the company wants Rockland to pay $77,038 to the company for its costs.

If that fails to get the city to approve the cell tower, the company is asking the court to appoint a third party to have the authority to approve the project.

The City Council is scheduled to meet with the Rockland Planning Board Wednesday evening, Jan. 20, to discuss the impasse between the City Council and Planning Board. The Council and Planning Board will meet in a closed-door session to discuss the legal matter.

"Despite the clear and unambiguous terms of this Court’s Judgment, the fact that the Judgment was a result of a fully negotiated Agreement for Judgment between the parties, and the passage of more than two months, the Board and the City have now repeatedly refused to grant Bay the Zoning Relief explicitly ordered by this Court," Bay Communications states in its motion.

"Similarly, the City’s building department has advised that Bay’s building permit application will not be considered until the Board grants Bay its Zoning Relief," the company stated in its Jan. 13 court filing.

The $1,000 per day fine is punitive, the company acknowledges, because it is meant to compel compliance.

"Far more severe fines for civil contempt have been upheld for this purpose," according to the company.

The Rockland Planning Board remains adamant in its refusal to approve a cell tower, despite the insistence by the City Council and city's outside attorney claiming approval must be granted following a settlement in federal court.

The board was not consulted before the settlement was reached last year, and the agreement calls for the board to approve the project with specific findings members say are false.

The city's attorney has informed the Planning Board that its members could be fined $100 as individuals for refusing to or neglecting to perform a duty of office.

Rockland resident Ananur Forma suggested to the City Council at its Jan. 13 meeting that citizens could make donations to pay the penalties for Planning Board members. Forma is an opponent of the tower.

The Planning Board voted Jan. 5 to send a memo to the City Council, asking the board be allowed to consult with an attorney that would represent the Planning Board and its interests. The City Council has not acted on that request.

The city has directed the Planning Board to approve the 120-foot cellular communication tower on Camden Street next to Pizza Hut, proposed by Bay Communications. The City Council approved a settlement with Bay Communications after the cell tower company filed a lawsuit in federal court.

The Planning Board rejected the cell tower application at a February 2020 meeting, which led to the communications company filing the lawsuit.

The Rockland Planning Board voted against the cell tower project at its February 2020 meeting. The tower was opposed by many Rockland residents, who said it would reduce their property values, be an aesthetic nightmare and pose health risks.

The City Council voted to accept the settlement at its November 2020 meeting. The City Council says federal law is clear the municipality can't prohibit such towers. The Council consulted with two attorneys who specialize in federal communication law.

No court date has been scheduled for the contempt hearing.

(Correction: The meeting between the City Council and Planning Board will be held Jan. 20, not Jan. 27 as originally reported.)

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Comments (17)
Posted by: DALE HAYWARD | Jan 15, 2021 21:51

Ananur: There is no insurance for incompetence.



Posted by: ANANUR FORMA | Jan 15, 2021 12:17

Doesn't the city have an insurance plan for situations like this?



Posted by: ANANUR FORMA | Jan 15, 2021 08:57

correction: I stated at the beginning of the mtg. during public expression time that I would like to donate $100. for contempt charges against the planning board members. I asked Tom how to go about that. Later on during the mtg. I asked if I might offer an idea that popped into my mind? "yes,"  said mayor Ed. I stated that it seemed to me that each council member had too much to do and suggested perhaps a volunteer step forward from our community to help each of them with answering emails and calls with ideas and suggestions for council members to help council. I said that I thought community members might want to help out researching as well.



Posted by: James Bowers | Jan 14, 2021 21:48

Before we moved to Rockland a while back I served more years than I can recall on the Town of Washington planning board. I have never heard of a town or city in the state that is allowed to grant a waiver; only the Appeals Board, or in this case, the city council, can grant a waiver. How can any court reasonably expect the Rockland Planning Board to issue a permit that includes a waiver? I don't know of any legal precedent for this. I don't believe the Planning Board has any other choice in the matter.

On another note, the City has not prohibited wireless communication towers. That would be against Federal law. The City is allowed to restrict where a tower may be erected but they cannot be completely prohibited.

 



Posted by: Kendall Merriam | Jan 14, 2021 21:32

Few are fans of cell towers, especially near residences. However, city council never got around to updating ordinances that could protect residents from these towers. Now the city (taxpayers) will be paying for this federal court procedure, e.g. city attorney fees, fines and sanctions. -Phyllis Merriam



Posted by: ANANUR FORMA | Jan 14, 2021 20:32

Just now a friend sent this for me to add here:

I have never meet any of you fine citizens of Rockland but I am meeting the challenge against the proposed Cell Tower to be erected on Route 1.  As an out-of-town person I only have Rockland's best interest in mind.  Therefore, I am providing $100 in support of the legal endeavor to keep Rockland's beautiful landscape the way it is.  There are clearly places where Cell Towers can and perhaps should be but having one at this location would definitely impact Rockland's unspoiled beauty. Jonathan Franklin, Aiken, SC.



Posted by: Sarah Austin | Jan 14, 2021 10:53

To specifically address Erik Lausten's and Jack Copp's point, at the conclusion of last night's meeting, council discussed our wish to invite the Planning Board to meet with us, with intention to reach out today. I believe the characterization of it as a scheduled meeting in this article was a bit premature.



Posted by: ANANUR FORMA | Jan 14, 2021 10:14

yes, I have contacted them more than once about this issue and Gov. mills as well.



Posted by: George Terrien | Jan 14, 2021 09:47

A question:  is the liability insurance that Rockland carries going to help offset the costs of any settlement that might arise from, or judgment that might be rendered in, this suit?  If not, our Auntie is going to make us even more uncomfortable sitting at this poker table of our own making.

Folks, NOW is the time to save money by hiring a FULL-TIME planner to help keep us out of trouble, because tracking ordinances is more than even the most dedicated of volunteers can be expected to do.  Why?  Here are two, costly answers:

1) New development pressures are upon us to find weaknesses like this failure to address the cellular chink we have known about--but ignored--in the ordinance for at least a decade, and 2) the soon-to-be-completed-and-long-delayed-(no fault of the volunteers, who should be applauded loudly)-and-we-may-hope-promulgated update to our comprehensive plan will require fundamental reexamination of existing ordinances.  And if this preceding sentence is not long enough to make us wish that we had been paying attention, just wait to learn how the court of public responsibility will decide our case!



Posted by: Stephen K Carroll | Jan 14, 2021 09:01

Sorry guess I continue to labor under the delusion that we have elected representatives in Washington namely Susan Collins & Angus King.  Has anyone contacted them to run interference for the City in this matter.  Thought that was their job.  Of course they are busy right now trying to impeach our President who lost in a rigged election and will be leaving office in a few days.  Perhaps they consider this action more important than helping Maine citizens protecting their rights.



Posted by: Jack S Copp | Jan 14, 2021 08:32

It is incredible to me that Erik Laustsen, the chairman of the planning board, had to find out out about being at a special meeting of city council, which he and his board would have to attend, by reading it off a news feed! Thank you Steve Betts for doing the work of our city council once again! I say this is incredible but, alas, not surprising, as it is a continuation of sidelining and exclusion of a named defendant (Rockland Planning Board) in this lawsuit by council. I suppose in this day and age of instant communications no one on council or city hall even thought about picking up a phone? This is getting beyond ridiculous, and not only questions Council's motives and methods, but their very legitimacy as the high-functioning entity we thought they were. This is exactly why this cell tower issue was not laid to rest months ago, exactly what plaintiffs wanted in this case, division between city departments, which heretofore worked well together and coordinated their efforts on our behalf. So what happened? Part of me now believes that there is another agenda by certain council members who actually want this tower, despite the overwhelming demand by their constituents, the citizens of Rockland, who turned out in droves to say a resounding NO to stop it. But, all that aside, really, it is simple: Our Planning Board looked at the application, then denied the construction of a cell tower at 182 Camden street on solid pre-existing code and rules for development at that site, and City Council illegally excluded them and what they had to say (their rules and codes) from the negotiations and the settlement. These rules and codes point out that this tower CANNOT be built in this location, and that is why our Planning Board has dug in their heels and refused to sign off on this proposal. It also explains why Council excluded them in the first place. The facts are all there for everyone to see (including a judge), and that is why Bay Communications, NEWN and AT&T are turning up the heat with these fines they asked for (asked for but not yet granted). I believe that once the dust settles and our pre-existing rules and codes are looked at, our Planning Board will be vindicated and any and all court costs and fines will be returned to Rockland.

 

 

 

 

 

 

 

 

 

 



Posted by: ANANUR FORMA | Jan 14, 2021 08:05

One more thing:

*contact the city clerk, Stuart Sylvester to get on his list then you will get the zoom link to the next city council mtg. where this topic is discussed 594-0304  or email him  ssylvester@rocklandmaine.gov the mtg. is January 20 at 5:30 p.m.

A judge would throw this out of his/her courtroom and no money would be due. This is nonsense, intended to put pressure on all of us to scare us ( $$$). Do not fall for this Bay Communications strategy!!!

YOUR presence is VERY important!



Posted by: ANANUR FORMA | Jan 14, 2021 07:55

I don't need to say much....I agree 100% with what Elizabeth said here.



Posted by: Crawford L Robinson | Jan 14, 2021 07:05

I'm all for fighting against it under one condition: Planning board members, city councilors and opponents of the tower pay all associated fines and penalties by passing their collection plate and not a nickel of it ends up on my future property tax bills. If the proper restrictions were not in place to prohibit it, who is at fault? I would suggest adopting some sort of a restriction and/or ordinance against future cell towers before we get another one if that hasn't been done by now.



Posted by: Elizabeth Dickerson | Jan 14, 2021 05:32

The Rockland Planning Board is amazing. Thank you Erik Laustsen. Don't back down. This whole thing is completely ridiculous. One of the most beautiful view corridors on Planet Earth and this is what people keep doing to it.



Posted by: Stephen Betts | Jan 14, 2021 05:10

The Council made that decision around 7:30 p.m. last night, I expect the city manager will be sending out a notice today.



Posted by: Erik Laustsen | Jan 14, 2021 00:15

I just checked my email after reading this article at 11:55pm Wed 1/13 & found nothing alerting me that the Planning Board is to meet with the Council on 1/27. This is the first I've heard of this. Thanks Steve. Erik Laustsen



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