PITTSFIELD — This Wednesday, three justices with the Massachusetts Appeals Court will hear an attorney argue that a Berkshire Superior Court judge was wrong to cut short a lawsuit filed by neighbors of a new cellphone tower in Pittsfield.
They will then listen as lawyers for the city and for Verizon Wireless say that by stopping a complaint before trial, Judge Douglas H. Wilkins got it right.
Those arguments will take place starting at 9:30 a.m. in the imposing John Adams Courthouse in downtown Boston. Typically, each party is given 15 minutes to speak.
The point of law to be debated is narrow: Did the city of Pittsfield fail in 2017 to provide proper notice to abutters that Verizon Wireless wanted a special permit from the Zoning Board of Appeals to erect a tower near the end of Alma Street on a tract with frontage at 877 South St.? The tower has been up and operating since September 2020.
State law requires that kind of notice. The city argued in the lower court that it complied with state law. A group of abutters provided affidavits saying they did not receive mailed notices.
Courtney Gilardi, a property owner on Alma Street who is not a formal abutter, said some neighbors feel a sense of frustration that the only issue to be decided by the court is the question of notification, not other concerns they have about the safety of the tower’s operation.
“They feel like they should have a voice on all of those things,” she said.
As the case has waited its turn at the appeals level, neighbors, led by Gilardi, have pressed the city to confront what they view as the tower’s health risks. This week, the Board of Health’s chairwoman said the panel is considering whether to issue a cease-and-desist notice to Verizon, requesting that it move or remove the tower.
In a separate action, the City Council in August voted unanimously to expand the required notice of abutters from 300 to 500 feet and to mandate that notices be sent by certified mail. Neighbors of the south Pittsfield tower lobbied for those changes, even though they would have no impact on their case.
In late October, the City Council asked the Attorney General’s Office to review the tower’s permitting process.
If the justices find for the plaintiffs, the original lawsuit would go back to the superior court.
In her brief to the appeals court, the plaintiffs’ attorney, Patricia A. DeJuneas, argues that Wilkins erred when he granted a motion for summary judgment in favor of the city and Verizon, as he did Aug. 13, 2020.
“There is a genuine issue of disputed fact as to whether the ZBA mailed the required notices to the Abutters, the Abutters lacked actual knowledge,” she wrote in her brief, filed in June. Because of that factual dispute, DeJuneas contends, the case should have gone to trial. Instead, Wilkins granted a motion for summary judgment.
Wilkins acknowledged that affidavits from residents raised questions about whether full notice was provided. But, he said the neighbors’ complaint had come too late, in 2020, long after the 90-day appeal period on the ZBA decision.
“In short, the dispute over whether the City mailed notice to the Plaintiffs is not material,” Wilkins wrote in his decision. “On the undisputed facts, the failure to provide notice by mail, while providing published and posted notice does not amount to a ‘complete failure of notice of a public hearing in advance of the granting of a special permit ....’”
“The Plaintiffs did not bring this case in timely fashion and, therefore, the court must dismiss the complaint,” Wilkins wrote.
Next week, attorneys for the city and Verizon can be expected to tell the justices that at least one abutter did receive a mailed notice that the tower was coming before the ZBA.
“There was, at a minimum, substantial compliance with the statute,” says the defense brief, filed jointly by Mark J. Esposito of Shatz, Schwartz and Fentin, of Springfield, representing Verizon, and Buffy D. Lord of Donovan O’Connor & Dodig, of North Adams, representing Pittsfield.
“While Plaintiffs assert that the mailed notice was not received by them, they offer no evidence to dispute that the notice was actually sent,” the brief says.
This past month, the case file to be studied by three associate justices — James R. Milkey, Amy Lyn Blake and Marguerite T. Grant — has grown. It now includes “friend of the court” filings from state Rep. Tricia Farley-Bouvier, D-Pittsfield, and other elected officials, including Peter T. White and Karen M. Kalinowsky, all in support of the plaintiffs.
Also providing amicus briefs are former Councilor John M. Krol Jr.; Cecilia Doucette, of the Alliance for Microwave Radiation Accountability; and Wired Broadband Inc. All of those filing amicus briefs are represented by Northampton attorney Michael Pill.