PITTSFIELD — A Berkshire Superior Court judge will hear arguments next month on whether a lawsuit against city officials, the Pittsfield Board of Health, Verizon Wireless and a local property owner should be dismissed.
Attorneys for the plaintiffs — a group of residents with homes near a Verizon cell tower at 877 South St. — and attorneys for the city and Verizon Wireless will meet on Feb. 14 for a zoom session to discuss three motions to dismiss the case. It was not clear who would preside over the case.
Petitions OK'd by the City Council call for the FCC to update its 1996 radiofrequency emissions rules and reevaluate standards relating to cell towers.
Attorneys representing City Solicitor Stephen Pagnotta, Mayor Linda Tyer and the Pittsfield Board of Health argued in their late November motion to dismiss that the residents had failed to take their claims of ethical breaches by Pagnotta and Tyer to the appropriate officials — in this case the state Board of Bar Overseers and the Ethics Commission.
The lawyers from Donovan O’Connor and Dodig LLP went on to argue that the issues raised by the residents should first be heard and decided on by these two groups before the Superior Court decides whether or not to rule.
A group of residents filed a legal action Thursday asking the Berkshire Superior Court to review whether the Board of Health improperly ended its opposition to a cell tower in south Pittsfield.
A central element of the residents’ suit is the claim that actions by Pagnotta and Tyer unlawfully forced the Board of Health to rescind an emergency order the board filed against Verizon Wireless in April.
The board unanimously voted to issue the emergency order against Verizon after more than a year of investigating reports from residents living near the tower that they’d been experiencing health problems since the tower began operating in August 2020.
While board members had hoped the order would draw Verizon and residents to the bargaining table, those hopes were waylaid when the board approached the City Council in an attempt to hire outside attorneys to defend the emergency order.
The council declined to take action on the board’s request for funding to hire outside attorneys after Pagnotta notified the council that Verizon had filed its own lawsuit in federal court in response to the board’s actions in May.
Unable to come up with the money for lawyers, the board decided to rescind its emergency order against Verizon — a move that prompted Verizon to drop its federal lawsuit.
The Pittsfield Board of Health pulled its cease-and-desist order over the Verizon cell tower. So the company dropped its lawsuit
Verizon Wireless withdrew its lawsuit against the Pittsfield Board of Health in federal court last week, saying its legal questions are essentially moot following a board vote to withdraw its cease-and-desist order.
Attorneys for the residents said in their response to the motions on Dec. 9 that while the Board of Bar Overseers and the Ethics Commission may have jurisdiction over some of the issues raised in the case, the bodies don’t have exclusive jurisdiction.
Attorneys Paul Revere III and Scott McCollough argued in their filing that the other bodies don’t have the ability to rule on the larger claims residents are making about political interference into the Board of Health’s decision making and so the case should remain in Berkshire Superior Court.
The residents also contend there’s a larger issue that remains to be decided: that of preemption.
Opponents to the cell tower’s placement have long pushed back on the idea that local bodies like the Board of Health are barred from acting on specific issues with cell towers due to federal telecommunications laws.
In their motion opposing the city defendants’ request to dismiss the suit, attorneys for the residents write that the Board of Health is required to take administrative action if it finds the cell tower constitutes a nuisance or public health threat — even if the tower is meeting the radiofrequency emission limits set out by federal law.
The residents argue that Verizon even agreed to this line of reasoning — and lost its ability to make a preemption argument — when it accepted its Pittsfield zoning permit that requires it to stay in compliance with the state sanitary code and city health-related rules and regulations.
In a rare filing by Verizon’s attorneys, the company pushes back on that claim, writing that the company recognizes it has “an obligation to comply” with state and local rules, but says that obligation extends only to rules that are “valid and legally enforceable.”
“Verizon had no way of knowing that the Board of Health would later issue an illegal and unenforceable order and cannot be bound thereby,” the filing states.
“To hold otherwise would engender exactly the kind of chaos that the [Telecommunications Act of 1996] sought to avoid, with patchwork radiofrequency emissions standards varying from locality to locality, dependent upon the vicissitudes of local politics.”