PITTSFIELD — Verizon Wireless has dropped the federal lawsuit it had filed against the Pittsfield Board of Health in the dispute over the company’s cell tower at 877 South St.
The telecommunications company said in a motion to dismiss filed Thursday that the case was moot since the board voted a day earlier to rescind a cease-and-desist order over the 4G tower
Judge Mark G. Mastroianni accepted Verizon’s motion on Friday, dismissing the request of several neighbors to be added as intervenors to the case in the process.
The Board of Health voted 4-0 — with new board member Dr. Jeffrey Leppo abstaining — to withdraw the order. Members said they no longer felt that the order, which they said was intended to bring Verizon to a discussion, would serve the best interests of the residents they were trying to protect.
“When we issued the cease-and-desist order, we did that as a strategy to have a conversation with Verizon,” Chair Bobbie Orsi said. “I felt in my heart that we really wanted them to come talk to us about this.”
“We wanted something that was going to be helpful for the residents in that neighborhood,” she added. “I guess my feeling now is that litigation is perhaps not the process, that’s going to get us to — that’s not going to help resolve the issues right now.”
The board voted unanimously to issue an emergency order against the company and tower in April after more than a year of investigating reports from residents living in the area around the tower that they’d been experiencing health problems such as headaches, dizziness, nausea, insomnia, skin rashes, palpitations and tinnitus since the tower began operating in August 2020.
At the time, Orsi and other members said they felt it was their “duty” to respond to these health issues and ask Verizon to meet and discuss moving or shutting off the tower. Board members said they’d taken a polite approach at first, hoping to appeal to the company’s desires to be a good neighbor to no avail.
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Members decided last week that the order would include the ability to withdraw everything without prejudice if they were "unable to obtain legal counsel prior to any administrative or judicial proceeding."
In April, the board changed tactics, issuing an emergency order that gave Verizon seven days to meet or receive a cease-and-desist order as part of the board’s “statutory and historical police power to protect its citizens from injury and harm.”
In the order, the board found that the cell tower “is a public nuisance” and “a cause of sickness” that “directly causes harm to certain individuals, and renders dwellings unfit for human habitation.”
Verizon responded in May by filing a lawsuit in U.S. District Court and asked the court to decide whether the order violated the Telecommunications Act of 1996 — a law that established how telecommunication companies could be regulated and compete with one another in a post-internet era.
The company cited the law’s preemption clause, which basically says no state or municipality can regulate the “placement, construction, and modification of personal wireless service facilities on the basis of the purported environmental effects of radio frequency emissions” as long as the facility is operating within the Federal Communications Commission’s regulations.
Verizon continues to maintain that the tower is operating within the FCC’s standards for radio frequency emissions.
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The company filed its lawsuit on the same day that the board was set to come before the City Council and request funding to hire two attorneys to defend the cease-and-desist order in court. News of the lawsuit halted all funding discussions and for the last two council meetings, councilors have declined to take any action one way or another on the board’s request.
With no way to hire attorneys and a deadline looming for the board to issue a response to Verizon’s complaints, board members decided to remove the cease-and-desist order.
“I don’t think that litigation, at this time, is the most effective vehicle to provide a remedy for the folks in that neighborhood — as much as we want to help them,” Board of Health member Brad Gordon said during the meeting last week. He said the better approach would be to come up with the “right solution” for the residents.
Board members said they’d continue to work with the City Council and state representatives on “collaborative discussion” around changing state law around the process and standards for placing and citing cell towers.
Orsi said an update on that work would likely come at the next board meeting in July.