As cell tower rises, neighborhood challenge to Pittsfield project faces new legal test

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PITTSFIELD — For months, residents of a south Pittsfield neighborhood waited for a judge to grant or reject their effort to stop construction of a cellular phone tower.

Now, their attorney must fight off an effort by Verizon Wireless and the city of Pittsfield to make the case go away.

After hearing from plaintiffs and defendants May 7, Berkshire Superior Court Judge Maureen Hogan said she would take under advisement the neighborhood's request for an injunction stopping construction.

Nearly three months later, Hogan has still not ruled. Regardless of when that decision comes, Verizon is now asking the court for a summary judgment rejecting the neighbors' challenge on the grounds that it came too late.

Hogan is scheduled to hear arguments at 2 p.m. Aug. 11.

Meanwhile, a work crew on Friday appeared to be nearing completion on the tower. Using a crane, workers rigged in with safety harnesses were assembling and attaching sections of the increasingly high monopole. The top of the crane could be seen from sections of Holmes Road to the south.

Under Superior Court rules in Massachusetts, a party can make a motion for summary judgment when it believes there is no legal issue that warrants a full trial — as a Verizon attorney argues in a recent filing. Neighbors oppose the move, contending that a key fact is in dispute: whether or not the city provided proper advance information to neighbors.

Lenox attorney Jeffrey Scrimo, who represents 12 people who live in the Alma Street area in Pittsfield, argues in a July filing that the court must decide whether the city's notice was adequate.

If the motion for summary judgment is granted, the neighborhood's legal challenge would be rebuffed. But if Hogan does not enter judgment for the city and Verizon, the case would likely move on to trial.

Key issue

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In the lawsuit filed April 17, neighbors claim they did not receive proper notice in late 2017 that the Zoning Board of Appeals planned to consider a Verizon Wireless project for land near a water tower at the top of Alma Street. After that Nov. 15, 2017, hearing, the ZBA granted the company a special permit for a 115-foot monopole-style tower. The permit was later renewed.

Work began only this spring, when neighbors say they first became aware of the project. Construction on the site has continued since the lawsuit was filed.

City officials say they provided proper notice, both through mailings and a legal notice in the newspaper. In court filings in late May, attorneys for Verizon Wireless and the ZBA said the project received the required public notice.

Both Buffy D. Lord, representing the ZBA and its members, and Mark J. Esposito, a Springfield lawyer hired by Verizon Wireless, argued that the request for an injunction lacked merit.

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In a later filing, Esposito calls for a summary judgment ending the case. The memo argues that case law and the facts of the case give the plaintiffs no basis to overturn the ZBA decision. He stakes that on the 90-day timeframe for appeals allowed by law.

"Judgment must be entered in favor of the defendants as the plaintiffs did not timely file their suit," Esposito writes.

But the plaintiffs insist that word of the tower project did not get out. They want the 90-day window on an appeal to begin not with the ZBA's decision in 2017, but when they learned of the project this spring. At least 14 neighbors who live within 300 feet of the project and qualify as abutters signed affidavits saying they did not receive notice.

Neighbors want the court to send the project back to the ZBA for another special permit review.

Scrimo, the attorney representing neighbors, argues in a July filing that the city failed to provide required notice. And he says the city board should have realized something was wrong, when only one abutter attended the tower hearing.

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"The city simply did not send them," Scrimo said of those notices, in an email in response to questions. "Consequently, the abutters did not learn of the hearing and issuance of the special permit until years later, when a convoy of construction trucks started driving through their quiet neighborhood."

"We cannot accept that the city can simply ignore its legal notice requirements to its residents without consequence," he said. "If the law doesn't actually require the notices it specifically says it requires, as Verizon and the City claim, then no neighborhood is safe."

Though located on high ground near Alma Street, off Holmes Road, the property is accessed from 877 South St. The site is owned by Farley White South Street LLC, a real estate company.

Pressing case

As they've waited for Hogan to rule, neighbors have pressed a grassroots drive against the project, through outreach to members of the City Council, anti-tower signs, a letter-writing campaign and a website, stoptower.com.

Courtney Gilardi, a lead opponent of the tower, said she had hoped Hogan would grant the request for an injunction.

"We have faith in the legal process, we just don't know how long we'll have to wait for it," she said. "Neighbors feel they're between a rock and a hard place right now."

On Thursday, she was rattled by evidence that tower construction is advancing. "I was just so hoping that they would honor the court process," she said of Verizon.

Larry Parnass can be reached at lparnass@berkshireeagle.com, at @larryparnass on Twitter and 413-588-8341.


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