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Pittsfield Board of Health requests $84,000 for lawyers' help in pursuing cease-and-desist order against Verizon Wireless' use of South Street cell tower

PITTSFIELD — Next week Pittsfield Board of Health officials will ask the City Council to put their money where their mouth is. Board officials are asking the council to approve a budget of up to $84,000 to hire two outside attorneys to take up — and defend — the board’s request that Verizon Wireless cease-and-desist use of a cell tower on South Street.

The Pittsfield Board of Health issued a cease-and-desist order to Verizon. Now it's looking for an attorney to back it up

The Board of Health issued an emergency order on April 11 giving Verizon Wireless seven days to request a hearing to show “why the Board of Health should not issue” a cease-and-desist order to the telecommunications company under the “Board of Health’s statutory and historical police power to protect its citizens from injury and harm.”

The emergency order lays out the board’s conclusions from a year and a half of studying the cell tower at 877 South St. In the order, the board finds that the cell tower “is a public nuisance,” and “a cause of sickness” that it “directly causes harm to certain individuals, and renders dwellings unfit for human habitation.”

The emergency order was sent by certified mail and data from the United States Postal Service shows that the attorneys for Verizon Wireless and Farley White Interests — which leases the land under the cell tower to Verizon — received the order on April 15 and April 14 respectively.

With those letters, the clock starts on what may be a quick walk to the courthouse.

The order is written so that if Verizon doesn’t respond within the first seven days of receiving the notice and requests a hearing — which would have been by Friday — then the board goes ahead and issues a cease-and-desist order after another seven days — so April 29.

That timeline gives the board a short window to hire the two lawyers who have stepped forward to represent the board.

The first is Andrew A. Rainer, a former Assistant Attorney General who once led the state’s Environmental Strike Force.

Cease and desist: Pittsfield Board of Health gives Verizon ultimatum over cell tower

Rainer has had a hand in litigating some of the biggest environmental cases in Berkshire County’s history, representing a group of homeowners who sued General Electric for PCB contamination and more recently a group opposing a plan to dispose of PCBs from the Housatonic River cleanup into a former quarry in Lee.

The second attorney is Robert J. Berg, a New York lawyer who’s become a feature of these telecommunication cases in recent years. Berg has represented residents challenging cell tower developments in California, Nevada and New York.

Berg wrote in a March 4 email to the board that he was first introduced to Pittsfield’s cell tower situation through his daughter who is the project manager for Americans for Responsible Technology. Berg’s daughter put him in touch with some of the Pittsfield residents living near the cell tower and the attorney has been following the neighborhood’s push against the tower for some time.

Berg and Rainer have reportedly agreed to serve as co-counsel for the board and prepare the body ahead of any negotiations, hearings or a potential trial with Verizon.

In a budget estimate the board has sent to city council, Berg and Rainer say they will reduce their typical billing rates from $650 and $750 an hour respectively to $400 an hour a piece.

The attorneys estimate that preparation for a show cause hearing with Verizon would cost $12,000, negotiations with the company would cost another $12,000 and a potential court case would come in around $60,000 in fees.

The proposed budget comes with a big caveat: the $60,000 estimate is based on the assumption that Verizon would take its case to the Massachusetts trial court.

“If Verizon were to bring suit in federal court, or in another forum, the board may need to present a revised budget, and will, in any event, return to the council before incurring any other or different expenses from those set forth above.”

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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