PITTSFIELD — 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.
The residents claim the board dropped a cease-and-desist order against Verizon Wireless due to what they allege was an illegal and unethical handling of the situation by Mayor Linda Tyer and City Solicitor Stephen Pagnotta.
“We are really just trying to get the outside interference of the Mayor and the City Solicitor, who has conflicts of interest ... out of the way and let the board exercise its independent authority to do what it thinks is the best,” Scott McCollough, one of the attorneys representing residents, said in an interview.
Residents say they don’t want any money from this action, just to reinstate the cease-and-desist order and kick-start talks between the board and Verizon over their health claims.
Efforts to reach Tyer and Pagnotta for comment were unsuccessful Friday.
The tower, at the rear of a parcel at 877 South St., went into service in the fall of 2020 after residents failed to block it. Residents in the Alma Street area claim that radiation produced by the tower has made at least 17 of them sick.
“The goal here is to let the board make that decision with the resources that it needs, including independent counsel, a lawyer that can give them fair and objective advice and does not have a conflict,” McCollough said.
The residents are making use of a Massachusetts state law that allows the court to review the administrative decisions of other bodies, like the Board of Health, and “correct errors in proceedings which are not according to the course of the common law.”
The law gives the residents 60 days to challenge the Board of Health’s actions.
To make the challenge, the residents had to name as a defendant the Board of Health, a body they view as their advocate through this process.
The filing says the the board is named “because it is their coerced action rescinding the Emergency Order that has harmed the Plaintiffs by continuing the nuisance, adverse health consequences and the ongoing constructive eviction of some of the Plaintiffs. ... Plaintiffs emphasize, however, that in many respects the Board is as much a victim as the Plaintiffs.”
Plaintiffs in the action are Courtney Gilardi, Charlie Herzig, Judy Herzig, Mark Markham, Angelika Markham and Elaine Ireland.
How we got here
The filing is the latest development in a battle between residents and Verizon Wireless that has spanned countless City Council and local board and commission meetings and spawned several court filings.
Verizon received a permit to construct the tower in 2017 and in August 2020 officially switched on the structure. Soon after residents began reporting health problems such as headaches, dizziness, nausea, insomnia, skin rashes, palpitations and tinnitus.
In January 2021, the City Council asked the Board of Health to investigate these health concerns and report back to the council on their findings.
In April, after more than a year of study and investigation, the board issued an emergency order that gave Verizon seven days to request a hearing to show “why the Board of Health should not issue” a cease-and-desist order to the company under the board’s “statutory and historical police power to protect its citizens from injury and harm.”
That order received no response and later that month, a cease-and-desist order went into effect against Verizon Wireless.
The Board of Health then set out to hire a set of outside attorneys to represent the body through the cease-and-desist process as it played out either in board meetings or in court.
During a meeting in April, board member Brad Gordon said that an executive session with Pagnotta in February had made it clear to the body that Pagnotta was “not in a position to serve in” the role of the board’s attorney in any potential legal action involving Verizon.
Pagnotta would typically represent the board, but he is representing the city’s Zoning Board of Appeals in a lawsuit brought by abutters to the cell tower that alleges that the city and Verizon failed to provide proper notice in 2017 to residents that Verizon was planning to build the structure.
The abutters — a group of 12 which includes the Markhams — took that suit to the state’s Supreme Court in June. That is pending in that court.
The health board came to the City Council in May to ask the panel to provide the board with funding to hire two attorneys for $84,000 to defend the cease-and-desist order. That same day, Verizon Wireless filed its own legal action, asking the U.S. District Court to decide whether the board’s order had violated the Telecommunications Act of 1996.
The council went into executive session that night with the intention of discussing hiring the attorneys for the board.
When the council emerged from session, Council President Peter Marchetti said “while in executive session we learned that Verizon Wireless has filed a case against the city in federal court,” and the council voted to table the board’s request to hire new attorneys.
With no action from the council, no attorneys and a new pending case from Verizon, the Board of Health voted June 1 to rescind its cease-and-desist order. Verizon Wireless asked the court to dismiss its filing soon after.
The residents claim that Tyer has run the city with a “pro-growth, business development” attitude that has focused first on creating a hospitable business environment and second on citizens’ needs. They argue that Tyer has decided that a strong wireless network is a prerequisite for attracting new business to the city.
“The mayor has decided that if we need wireless so bad that if a couple of people get sick, then just so be it,” McCollough said.
“We’re not saying don’t bring new business into Pittsfield, we’re not even saying don’t bring wireless into Pittsfield,” he added. “What we’re saying is that you can’t do it at the cost of the people in Pittsfield.”
The filing continues to claim that Tyer refused or delayed meetings with the Board of Health on the subject of the cell tower and instead sent other city employees, including Pagnotta, to discuss the project and “frustrate the Board’s effective exercise of its local and state powers.”
The filing lays out extensive claims against Pagnotta, but chief among them are several complaints that Pagnotta has conflicts of interest in this matter. The residents say that if Pagnotta were acting in accordance with the state’s standards of conduct for government officials, he would have removed himself months ago from providing advice to the Board of Health and City Council on this cell tower issue.
The first conflict residents claim comes from Pagnotta’s involvement as the city’s attorney in the abutter lawsuit.
The second conflict of interest allegation comes from Pagnotta’s position as a managing partner at Donovan O’Connor & Dodig, LLP. The law firm represented Verizon Wireless in a North Adams-based lawsuit that spanned from 2016 to 2020.
Residents say that Pagnotta admitted to the board that “he lacked the necessary telecommunications law competence and had an ethical conflict.”
McCollough said that in the executive session with the City Council and in public Pagnotta was saying that Verizon’s case in federal court was “going to cost the city hundreds of thousands of dollars … take forever … and [the city council] was going to potentially pay Verizon’s lawyers and hire a bunch of experts” in a case that the city “would lose.” McCollough said all of that information was wrong.
When asked by The Eagle for evidence of Pagnotta saying these things, McCollough said “we have heard and can document he was making those representations to individual council members.”
The residents have asked the Berkshire Superior Court to declare that “the City Solicitor’s improper actions carrying out the Mayor’s illegal interference have contaminated the Board’s proceedings, rendering the decision to rescind the Emergency Order illegal.”
McCollough said what he sees as an irony of the situation is that the City Council appeared to stall on the cease-and-desist issue over concerns about the cost of hiring attorneys to handle the legal issue.
“It may well be that [the council] has to hire outside counsel to represent the board in this litigation, but then separate counsel for the mayor and for Pagnotta,” he said. “They’re going to be hiring more counsel.”
The attorney said the ultimate goal of trying to get the cease-and-desist reinstated is not to bring the board and Verizon into a long legal battle, but to get Verizon to come to the table with the board and “negotiate in good faith for the first time.”