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Cell tower opponents say city attorneys have a conflict of interest. And they want a judge to rule in their favor against Verizon

cell tower

An aerial view of the 115-foot monopole that Verizon Wireless erected in a south Pittsfield neighborhood in 2020. Neighbors living near the tower in Pittsfield are asking a judge to rule in their favor after attorneys for the city failed to respond to their July lawsuit. 

PITTSFIELD — A group of Shacktown neighborhood residents asked a Berkshire Superior Court judge last week to issue a default judgment in a lawsuit over the city’s handling of a cease-and-desist order brought by the Board of Health against Verizon Wireless in April.

The motion was followed by a request that a local law firm, Donovan O’Connor and Dodig LLP, be disqualified from representing the defendants in the case, which include Mayor Linda Tyer, city Solicitor Stephen Pagnotta, the Pittsfield Board of Health, Verizon Wireless and a South Street property owner.

Attorneys Gregory Howard and Buffy Lord from Donovan O’Connor and Dodig currently represent Tyer, Pagnotta and members of the board. Pagnotta is a partner at the firm.

Judge John Agostini gave Tyer, Pagnotta and the South Street property owner until the end of November to respond to the request for a default judgment. In the suit, the plaintiffs — the neighborhood residents — are asking the court to review whether the Board of Health improperly ended its opposition to the cell tower, and to get reinstated a cease-and-desist order against Verizon from the board.

Pagnotta said via email Tuesday that while he can’t comment on an ongoing case, he and the other defendants plan to respond to the request for judgment by the new deadline.

The request for a default judgment attempts to bring a quick end to what has been a series of protracted suits revolving around a Verizon Wireless cell tower at 877 South St.

The plaintiffs in this case — Courtney Gilardi, Charlie Herzig, Judy Herzig, Mark Markham, Angelika Markham and Elaine Ireland — represent a group of at least 17 neighbors who say that the cell tower has been making them sick since it was turned on in the fall of 2020.

Some of the plaintiffs are members of another, recently completed lawsuit in which direct abutters to the tower challenged the city’s abutter notification and permitting process for the tower. Neighbors lost their initial case and appellate case.

In September, the state’s Supreme Judicial Court declined to take up a final appeal of the case.

Verizon cell tower opponents hope to air their case before the state's highest court

“There always seemed to be this issue with the two cases and perhaps now this liberates things even further,” Gilardi said.

While Gilardi and other residents have long tried to keep the abutter and health concerns cases separate, the sometimes hazy line between the suits has now become an important part of the ongoing case dealing with the Board of Health’s cease-and-desist order.

Attorneys for the plaintiffs — Paul Revere III and Scott McCollough — argue that Pagnotta’s role in litigating the abutter case created a conflict of interest that should have kept him from advising the board and City Council on the cease-and-desist issue.

Pagnotta represented the city’s Zoning Board of Appeals in the lawsuit brought by abutters.

Pagnotta’s law firm, Donovan O’Connor and Dodig, also represented Verizon in a North Adams-based lawsuit from 2016 to 2020.

The plaintiffs argue that these two sets of circumstances inherently intertwined Pagnotta’s interests with Verizon’s and were to the detriment of the Board of Health’s attempt to get an unbiased opinion on its situation as it pursued a cease-and-desist order against the company.

Board of Health members said in April that Pagnotta had made it clear in previous executive sessions that he was “not in a position to serve in” the role of the board’s attorney in any legal action involving Verizon.

The Pittsfield Board of Health pulled its cease-and-desist order over the Verizon cell tower. So the company dropped its lawsuit

Exhibits submitted with the plaintiff’s request to bar Donovan O’Connor and Dodig from representing the board and other defendants contain emails from various city officials backing up this account.

“Our city solicitor does not feel compelled to move this [the emergency order] forward for various reasons, and by his own assertion, he has very little experience with this kind of law,” Board of Health Chair Bobbi Orsi wrote in a March 2 email to councilors Patrick Kavey and James Conant.

Orsi goes on to say that she asked Pagnotta for recommendations for outside attorneys who could work with the board.

In another email in the exhibits, Councilor Ken Warren emails a Harvard Law professor asking for advice on the liability the city might face in defending the board’s order. Along with his questions, Warren writes that “our city solicitor, while very good, has no experience in this area.”

The plaintiffs say that while the city solicitor told city leaders that he wasn’t able to work on the cease-and-desist order, he continued to advise the council in a way that ran counter to the board’s goals.

“Pagnotta frustrated the Board of Health’s quest for outside counsel by, among other things, failing to provide recommendations for potential outside counsel,” the plaintiffs say in their most recent motion. They say the attorney also offered “inaccurate and inappropriate advice to the City Council” on a suit brought by Verizon against the city.

The plaintiffs say that Pagnotta’s role in advising the city while the cease-and-desist was ongoing creates a conflict of interest for the other members of Pagnotta’s firm and makes them “essential fact witnesses” in this case — what the neighbors see as two causes to keep the firm from representing anyone in this case.

“The board — without having the proper legal counsel, the technical expertise and the resources to be able to do this work — their hands continue to be tied,” Gilardi said.

Meg Britton-Mehlisch can be reached at mbritton@berkshireeagle.com or

413-496-6149.

Pittsfield Reporter

Meg Britton-Mehlisch is the Pittsfield reporter for The Berkshire Eagle. Born and raised in Kansas City, Missouri, she previously worked at the Prior Lake American and its sister publications under the Southwest News Media umbrella in Savage, Minnesota.

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