Ruling goes against Pittsfield cell tower neighbors, but fight might continue

In a ruling and order Aug. 13, Judge Douglas H. Wilkins said that abutters of the 115-foot monopole that Verizon Wireless has erected in a south Pittsfield neighborhood failed to appeal the Zoning Board of Appeals' approval of the tower within the 90 days provided by law. He granted a motion by the company and the ZBA to rule, in what's known as a summary judgment, to dismiss the complaint without holding a trial.

PITTSFIELD — The tower stands. For now.

An effort by Pittsfield neighbors to subject a new cell tower to a fresh municipal review came up short in Berkshire Superior Court. But, plaintiffs might appeal, their attorney says, pressing their case that state law requires that abutters "shall" be notified about a project like this.

In the end, whether they got advance notice in 2017 of the 115-foot monopole that Verizon Wireless has since erected in their south Pittsfield neighborhood was deemed to be immaterial to the case, Judge Douglas H. Wilkins ruled.

Instead, in a ruling and order Aug. 13, Wilkins said that neighbors failed to appeal the Zoning Board of Appeals' approval of the tower within the 90 days provided by law. He granted a motion by the company and the ZBA to rule, in what's known as a summary judgment, to dismiss the complaint without holding a trial.

"In short, the dispute over whether the City mailed notice to the Plaintiffs is not material," Wilkins wrote.

The judge said he reached his decision assuming that the plaintiffs were right in faulting the city's efforts to provide written notice to abutters — a claim that the ZBA refuted.

"While the result may seem harsh to abutters, the opposite rule may be harsh to applicants, who may invest time, effort and money in acting under a permit in the honest belief that no one intended to contest or appeal from the permit," Wilkins wrote.

The ruling was a win for attorney Buffy D. Lord, of Donovan O'Connor & Dodig LLP of North Adams, who represented the ZBA and its members.

Jeffrey Scrimo, the Lenox lawyer for 12 plaintiffs, said he expects his clients to seek an appeal.

He said case law cited by attorneys and Wilkins in the case allows for interpretation, while he maintains that the statute itself is clear — "that written notice of a Special Permit Hearing `shall' be provided to abutters."

In this case, while the ZBA provided an affidavit from a city official saying that notices were mailed to project abutters, at least nine of them, in their own sworn statements, say they did not receive them.

Neighbors are concerned that the tower, constructed this summer, might depress the value of their homes and affect their health.

"The case law needs to be further clarified by a higher court through the appeal process," Scrimo said. "This is a perfect case for the Appeals Court to clarify once and for all what should happen when a city or town fails to provide the required written notices to abutters, causing abutters to miss the appeals period simply because they did not know about the hearing or decision."

Courtney Gilardi, an Alma Street resident who helped rally opposition, said residents have spoken with attorneys about the prospects of an appeal and feel that they have a strong case to overturn the Wilkins ruling.

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She said that decision will come soon and will depend, in part, on money.

"We need to fundraise, and we have to really depend on the supporters," she said.

Gilardi believes that the principle of receiving advance notice of projects is worth fighting for.

"It's a precedent that really impacts all of Pittsfield," she said. "We want to win this for all of Pittsfield to give little guys a voice."

Gilardi said neighbors will continue to use online crowdfunding measures, such as GoFundMe, to move forward.

"There has been this amazing groundswell of support from throughout the community. It's kept me going," Gilardi said.

Verizon's stake

In his ruling, Wilkins said that the failure of notices to reach the abutters could have been due to a U.S. Postal Service mistake. But, he cautioned that, given evidence the city provided notice in other ways — through a legal ad in the newspaper, a posting in City Hall and a notice on the Pittsfield website — the company that sought and secured the special permit should not be penalized.

"Verizon did not learn of this appeal until more than a year after expiration of the appeals period," he wrote. "During which time it mobilized resources to commence construction."

Neighbors sued this spring, after construction vehicles arrived in the area; they argued that this was the only notice they received.

Gilardi said she is discomfited by the judge's ruling that the lack of notice was "not material."

"That is so important," she said. "Those letters were the only thing that provided notice. People would have been to those meetings in 2017 if we had known anything."

Larry Parnass can be reached at lparnass@berkshireeagle.com, at @larryparnass on Twitter and 413-588-8341.